IBcharla

Cooling & Winter bought my BOA Debt and listing BOA as the PLAINTIFF?

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12/15/20  Canton, Georgia

Cooling & Winter = Debt Buyer > Complaint filed OC/BOA as Plaintiff??

In October 2019 my EBAY account was Hacked.  The charges to my Bank of America (VISA) account, I reported & disputed.  I was denied any help in investigating the matter, on BOA's end, even with the backup support from EBAY. (I was not linked to PayPal. the hacker, changed my shipping address & ordered over $2,000+ worth of merch.  After midnight, my email account blew up with account memberships from retailers, all over the Globe... This continued, 2-4 accounts, every 60 seconds till 7:00 AM. Accounts in every language you could imagine. I can continue the outcome of this nightmare, later....) Come November, payment, I called BOA to request a HARDSHIP Request of a Temporary 2-3 month minimum payment reduction or deferred payment plan on a 96 month, NO LATE CHARGE record streak!!  I was denied.  Nor, was I referred to another department for further negotiations. My balance prior to the fraudulent charges, roughly, $3,100.00.  I have had a Snowball effect of setbacks... Total Hip Replacement Surgery needed with no insurance or work. Could not drive or walk for 3 years until I finally, a brilliant surgeon took my case.  Dr. Mark Hanna, Emory.  Post Op, Financially indigent, I was forced to move out and into my brothers garage.  The garage is detached from the house & has it's own address with the USPS. (This information is for how I was served.)

I had a few calls from BOA Demanding payment and was warned that the account was going to be closed.  Then the calls stopped.  I received two letters requesting payment.  Then Covid hit & there was no further communication with BOA or Anyone... Until, my brother informed me of a Cherokee County Sheriff's business card taped on his door with a number and a box checked as  >>  Paperwork.  I phoned & was asked to come in.  I did and They SERVED ME through the door?

The Complaint lists Bank of America as the Plaintiff.  Attorney/Cooling & Winter.  The BOA address is listed as the same as Cooling & Winters'??  The complaint ALSO, states the account has been Charged-Off?  I called BOA & they claim they SOLD the debt to Cooling & Winter in  February 2020??  Cooling & Winter seeking Judgement, amount: $5,798.00 + Court Costs. 

I have been SCOURING over O.C.G.A. § Title 9 & Title 18 and for the LIFE of me can not find out a reasonable affirmative defense against Cooling & Winter not listing themselves as the Plaintiff (Debt Buyer) or if, it is unlawful??  I read that it is too late to file discovery or a Validation Request Letter?  Though, perhaps I should do it anyway since, they neglected to contact me prior to filing this suit?

I do, however, have money saved to negotiate a Lump Payoff. I would hire a consumer Law attorney, though, do not know who to trust....???  Going up against FREDDIE HANNA'S COHORT HENCHMEN.

I have 6 days to answer.

Is there a Lawyer out there?  Anywhere??
(BTW, I'm 65 years old, unemployed with no other debt, nor history of bad debt. I have not applied for Social Security. No savings account or other credit card accounts.)

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2 hours ago, IBcharla said:

12/15/20  Canton, Georgia

Cooling & Winter = Debt Buyer > Complaint filed OC/BOA as Plaintiff??

In October 2019 my EBAY account was Hacked.  The charges to my Bank of America (VISA) account, I reported & disputed.  I was denied any help in investigating the matter, on BOA's end, even with the backup support from EBAY. (I was not linked to PayPal. the hacker, changed my shipping address & ordered over $2,000+ worth of merch.  After midnight, my email account blew up with account memberships from retailers, all over the Globe... This continued, 2-4 accounts, every 60 seconds till 7:00 AM. Accounts in every language you could imagine. I can continue the outcome of this nightmare, later....) Come November, payment, I called BOA to request a HARDSHIP Request of a Temporary 2-3 month minimum payment reduction or deferred payment plan on a 96 month, NO LATE CHARGE record streak!!  I was denied.  Nor, was I referred to another department for further negotiations. My balance prior to the fraudulent charges, roughly, $3,100.00.  I have had a Snowball effect of setbacks... Total Hip Replacement Surgery needed with no insurance or work. Could not drive or walk for 3 years until I finally, a brilliant surgeon took my case.  Dr. Mark Hanna, Emory.  Post Op, Financially indigent, I was forced to move out and into my brothers garage.  The garage is detached from the house & has it's own address with the USPS. (This information is for how I was served.)

I had a few calls from BOA Demanding payment and was warned that the account was going to be closed.  Then the calls stopped.  I received two letters requesting payment.  Then Covid hit & there was no further communication with BOA or Anyone... Until, my brother informed me of a Cherokee County Sheriff's business card taped on his door with a number and a box checked as  >>  Paperwork.  I phoned & was asked to come in.  I did and They SERVED ME through the door?

The Complaint lists Bank of America as the Plaintiff.  Attorney/Cooling & Winter.  The BOA address is listed as the same as Cooling & Winters'??  The complaint ALSO, states the account has been Charged-Off?  I called BOA & they claim they SOLD the debt to Cooling & Winter in  February 2020??  Cooling & Winter seeking Judgement, amount: $5,798.00 + Court Costs. 

I have been SCOURING over O.C.G.A. § Title 9 & Title 18 and for the LIFE of me can not find out a reasonable affirmative defense against Cooling & Winter not listing themselves as the Plaintiff (Debt Buyer) or if, it is unlawful??  I read that it is too late to file discovery or a Validation Request Letter?  Though, perhaps I should do it anyway since, they neglected to contact me prior to filing this suit?

I do, however, have money saved to negotiate a Lump Payoff. I would hire a consumer Law attorney, though, do not know who to trust....???  Going up against FREDDIE HANNA'S COHORT HENCHMEN.

I have 6 days to answer.

Is there a Lawyer out there?  Anywhere??
(BTW, I'm 65 years old, unemployed with no other debt, nor history of bad debt. I have not applied for Social Security. No savings account or other credit card accounts.)

Cooling & Winter is a law firm, not a debt buyer.  They represent clients and can represent BoA in court.  It’s just the same as you hiring an attorney to represent you.  The reason the address is the same is because once a lawyer is hired, all communication is done with a party’s attorney.  You would communicate with the attorney, not BoA.

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It is hard for me to follow your post, but you may have a very strong defense, which I personally have used to beat one of the toughest OCs in the past.  

Show the evidence that you demanded investigation of these false charges, 

show that they did nothing to investigate the false charges.  

Are these charges still on your statements?

 

If I were you, I would file counter charges against BOA on the grounds they violated federal banking laws in not investigating the disputed charges.  That might be enough to make BOA willing to drop the case, or at least settle for a much smaller amount of money.  

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1 hour ago, BackFromTheDebt said:

If I were you, I would file counter charges against BOA on the grounds they violated federal banking laws in not investigating the disputed charges.  That might be enough to make BOA willing to drop the case, or at least settle for a much smaller amount of money.  

I agree that if the OP properly and timely disputed the charges and BoA failed to investigate, the bank should be held accountable.   Under what specific law would the OP counter sue?

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53 minutes ago, BV80 said:

I agree that if the OP properly and timely disputed the charges and BoA failed to investigate, the bank should be held accountable.   Under what specific law would the OP counter sue?

It has been many years since I won an arbitration case on these grounds, so I don't have the papers, etc.  

I do know where to look.  There are federal banking statutes.  I just can't find them quickly.  It took me a bit of work to find them, and I can't remember.  It is the Fair Credit Billing Act. 

From the FTC web site, https://www.consumer.ftc.gov/articles/0219-disputing-credit-card-charges#investigation

Quote

The Investigation

You may withhold payment on the disputed amount (and related charges) during the investigation. You must pay any part of the bill not in question, including finance charges on the undisputed amount.

The creditor may not take any legal or other action to collect the disputed amount and related charges (including finance charges) during the investigation. While your account can't be closed or restricted, the disputed amount can be applied against your credit limit.

The creditor may not threaten your credit rating, report you as delinquent, accelerate your debt, or restrict or close your account because your bill is in dispute or you have used your FCBA rights. However, the creditor may report that you are challenging your bill. In addition, it’s against federal law for creditors to discriminate against credit applicants who exercise their rights in good faith under the FCBA. For example, a creditor can’t deny you credit just because you've disputed a bill.

My feeling is if the OP has a valid claim against BOA due to FCBA violations, the OP could get this case to go away quickly.  

I work in banking regulation these days.  I know that banks do NOT want to be investigated by Federal regulators.  I know of cases, including one of my wife's accounts, in which banks simply let an account slide rather than deal with Federal regulators.  I know of cases in which banks have spent millions of dollars to fix problems regulators found dealing with tens of thousands of dollars.  I cannot say more, nor can I say which banks.  

 

If the OP really has evidence of an FCBA violation, the OP has extremely effective counter claims.  This does not mean the OP can win the case, but that if the OP has strong evidence, a smart collections attorney would drop this case like a hot potato.  Such an action would be mutually beneficial to the OP and to BOA, if the evidence is there and is solid.  

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10 hours ago, IBcharla said:

I read that it is too late to file discovery or a Validation Request Letter?

It is definitely too late for a DV letter.  Did they sue you in District Court or Magistrate Court?  If the case is in Magistrate Court then you cannot do discovery as it isn't allowed at that level.

10 hours ago, IBcharla said:

Though, perhaps I should do it anyway since, they neglected to contact me prior to filing this suit?

Nothing in GA law requires they notify you prior to suing. They never had to send one dunning letter they could have simply filed with the court.  

10 hours ago, IBcharla said:

My balance prior to the fraudulent charges, roughly, $3,100.00.

It appears you have two separate issues.  You had a balance prior to the fraud that was valid then you had a default on the account unrelated to the fraud.  Is it correct that the fraudulent charges merely increased the balance?

You can contact the law firm Skaar and Feagle.  They are very experienced consumer attorneys and will do a first consult for free.  CALL do not email.  They are very busy.  Get a consult from them given your unusual circumstances with the account issues.  

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25 minutes ago, Clydesmom said:

You can contact the law firm Skaar and Feagle.  They are very experienced consumer attorneys and will do a first consult for free.  CALL do not email.  They are very busy.  Get a consult from them given your unusual circumstances with the account issues.  

This is good advice.  Clydesmom knows a lot more about the situation in Georgia than I do.  The firm she recommended will know how to handle the situation a bit better than some guy from Wisconsin who once faced a vaguely similar situation many years ago in arbitration with a different bank.  

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4 hours ago, BV80 said:

I agree that if the OP properly and timely disputed the charges and BoA failed to investigate, the bank should be held accountable.   Under what specific law would the OP counter sue?

Let me add this:

When I had a vaguely similar situation, a very large part of my attack was that the bank's accounting could not be trusted.  That is, if they couldn't be bothered to investigate fraud on the account, then how can you trust their accounting?  

In my case (actually my wife's case), I saved a letter from the OC with clearly false statements about the account, as well as a letter sent CMRRR from my wife demanding an investigation that OC never performed.  That was enough to convince their attorney to drop the case.  

The OP didn't claim evidence that BOA lied.  If he does have such evidence, it would destroy BOA's credibility.  

The failure of BOA to investigate claims under the FCBA may or may not be sufficient to cast extreme doubt on BOA's accounting.  It does pretty much negate a large chunk of BOA's claims.  At the least, it makes BOA look really bad.  Suing for amounts covered under the FCBA is a clear violation of the FCBA, and could be very bad for BOA.  

In addition, this is a misrepresentation of the amount of the debt.  I don't know Georgia law, but in some states this runs contrary to the state laws.  

 

In any case, @Clydesmom gave excellent advice on which consumer atty to consult.  The OP should heed that advice.  

 

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Hello, I wish to thank responders to my post; 'Clydesmom of Skaar & Feagle, BV80 & BackFromTheDebt.  Your replies are respected and highly valued, at this juncture! 

***  I'm afraid I was fed misinformation, the first time I called Bank of America to confirm "IF", the Charged-Off account Lawsuit had been 'Assigned' to Cooling & Winter or 'Sold' to Cooling & Winter....  **TODAY, I felt it necessary to confirm the information and called BofA again. 

  • BofAM, in fact, STILL OWNS the Debt.
  • The account has been  charged off.
  • Transunion & Equifax are showing a closed account with Bank of America, $0.00 Balance & 42 consecutive payments under 30 days.

NOW to SHIFT GEARS and head into a NEW Direction.... After reading GA Code Title 9, Title 18, Title 11, chapter 7... I have only a few options, Pro Se...

     (*In regards to a statement given by Clydesmom, about listening to what I only want to hear... by others... That is not how, I choose to use my Logical Brain.  I do not form my set of belief's based on opinions, hearsay, any form of theorizing or what sound's good to me, at the time...  When it comes to Law, I will do the hard work to learn it.  I respect our Judicial Institution.  "Proprio Motu".  "Vililatibus Et Non Dormientibos Jura Subveniunt".  When it comes to learning my Rights, in a Court of Law, I am not Indolent.  Due to an accumulation circumstances beyond my control, despite my years of careful planning...  I may be Indigent but, not Indolent!!  Thank you. 

    *Incidentally, I was looking over a list of Consumer Law firms on Avvo & reviewed your website, in consideration of my options.  I'm still undecided of choosing representation due to the nature of my financial situation)


    Now, about the dispute over the unauthorized charges.  In 2008, I experienced the same reaction from Bank of America, on a Fraudulent series of charges that came to my attention.  Due to a "Shipping & Handling" charge for $1.98 postage, regarding information for working at home.  The ad was posted on Monster Jobs.com.  The packet was never sent and Out of Sight, Out of Mind I forgot all about it.  It was the Holiday Season.  Come February, I was notified my account was in default for non-payment.  Being a Paperless Card Holder, I logged on & discovered the $1.98 charge had charged more amounts, for 2 months... maxing out my credit limit.  Calling the number on the statement, provided, thje number was disconnected.  I googled the name of the company and Pandora's Box opened up Hundreds upon hundreds of complaints filed about this FRAUD!!  I made copies of the testimony in triplicate.  Sending letters to the FTC, BBB, IC3 (FBI), STAYSAFEONLINE,COM, CLARK HOWARD...ETC. I made an appointment with my Branch Manager to File the complaint/dispute in person....  My dispute was DENIED!!  All evidence was not withstanding.  After our meeting was adjourned, I had a car loan with them with a balance of $1700+.  I paid off the loan in full, with the teller, closed my checking account and drove straight to Wachovia & opened a new account.  I wasn't thinking clearly.  I was angered and should have paid on the credit card with what I had as disposable.  Regardless, my history with them left a bad taste for my fighting their resistance in helping me with last years dispute.

  **Incidentally, last year, at the time of the disputed charges with Bank of America... 

I was served with a $800,000.00 Personal Injury Claim (The Roth Firm, LLC) regarding a small fender bender.  USAA assigned me a Defense Firm, which were unresponsive to my suit??  I was so, consumed with this suit that I contacted another attorney and invested every penny I had to pay the RETAINER.  Once again, this stretched over the Holiday's...  Both defense attorney's calendars were full.  However, an answer to 22 Interregories were filed, plus a continuance.

I started doing my own investigative work on the plaintiff's movements, activities and statements over two Social Media Sites.  I did a Criminal Background Check and what I uncovered, I chronologically documentented, including videos, photo images.  Researched his Doctor's affidavit finding flaws in date entries.  As well, malpractice suits against the Doctor and Medical Practice Revocation.  Through my diligence to gather evidence and  researching Supreme Court Judgements allowing Social Media Posts as being admissible to the Court... after sharing my findings with USAA Legal Team in San Antonio.... 15 minutes later, I received an email from the Atlanta Firm/USAA hired, stating the Claim had been settled.  This was the first week of February 2020.  The Charge Off on my Bank of America account was filed the same month. 

I admit, Hardship, Negligence in addressing my dispute with Bank of America holds no merit in an affirmative defense.  With Sars Covid-2 Lockdown going into affect, I paid little attention to the matter... In retrospect, due to my lack of respect for Bank of America and their lack of loyalty and compromise, as a customer... any forethoughts for their regard were inconsequential.

My Options:  #1.  File my Answer.  By Monday, 12/21/2020

(?) Should I send a notarized settlement offer via certified mail, prior to filing my answer to the clerk of court?  

(??)  Should I request that the settlement offer be accepted with prejudice?  Negotiate that the Charge-off be submitted as resolved with Credit Bureau's ?? And, File a Motion to Dismiss after filing my answer.

(???)  Offer 30% of balance with room for counter offer's.  Up to 45-50%....???   I have no intentions on raising my offer If, in fact, they remark that my offer is not good enough and to raise my submitted number....  My next offer will only be given after a counter offer. 

    My intentions if, if my second offer is rejected, I would inform them, I have consulted with a Credit Councilor, obtained a Certificate for filing Chapter 7 with the Northern District of GA US. Bankruptcy Court and have filled out Forms and taken the Means Test, resulting in 'No Presumption of Abuse"  I qualify for filing Chapter 7. And, list the forms that I have filled out....  (Thought's.... anyone?)

(????)  What about bringing up the 1099c in the negotiations??  I need to find out about that.  Is it something that I should only be aware of or Is it advisable in negotiating strategy with the settlement reduction?

      Thank you for reading my post.  Advice for consideration is appreciated.  My goal is to settle the claim prior to the Hearing.  I have no intentions, at this time to File Chapter 7. 

      **My option to retain Legal council, is something I'd like to further discuss if, Cooling & Winter puts me off, stalls, ignores or rejects my offer to settle the debt, prior to the hearing.  

"The Laws assist those who are Vigilant with their Rights and not with those who sleep thereupon."

 

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4 hours ago, IBcharla said:

My Options:  #1.  File my Answer.  By Monday, 12/21/2020

(?) Should I send a notarized settlement offer via certified mail, prior to filing my answer to the clerk of court?  

I would file an answer to make sure I avoid a default judgment.   However, the clerk of court has nothing to do with a settlement offer. 

 

4 hours ago, IBcharla said:

Should I request that the settlement offer be accepted with prejudice?

That’s not how it works.  There is no “acceptance with prejudice.”   A lawsuit is “dismissed with prejudice” or “dismissed without prejudice.”  If you settle with BoA, once payment is received, the law firm will notify the court that the lawsuit is dismissed.

 

4 hours ago, IBcharla said:

Negotiate that the Charge-off be submitted as resolved with Credit Bureau's ??

When an account is charged off, a settlement will result in the account being updated with the credit bureaus as “settled” or “settled/paid” or “settled for less than full amount.”   
 

4 hours ago, IBcharla said:

And, File a Motion to Dismiss after filing my answer

If the plaintiff accepts your settlement offer, it is the job of the plaintiff’s attorney to notify the court of the settlement and dismissal.  

 

4 hours ago, IBcharla said:

Offer 30% of balance with room for counter offer's.  Up to 45-50%....???   I have no intentions on raising my offer If, in fact, they remark that my offer is not good enough and to raise my submitted number....  My next offer will only be given after a counter offer. 

All you can do is make an offer.  There is no way of knowing what they will accept.

 

4 hours ago, IBcharla said:

What about bringing up the 1099c in the negotiations??  I need to find out about that.  Is it something that I should only be aware of or Is it advisable in negotiating strategy with the settlement reduction?

I did not see where you mentioned a 1099c in your previous posts.  Have you received a1099c for this account?  For what reason would you mention it in negotiations?

 

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10 hours ago, IBcharla said:

In regards to a statement given by Clydesmom, about listening to what I only want to hear..

That is my signature on ALL posts I make and is not intended personally at just for you. SMH

10 hours ago, IBcharla said:

My Options:  #1.  File my Answer.  By Monday, 12/21/2020

(?) Should I send a notarized settlement offer via certified mail, prior to filing my answer to the clerk of court?  

You should answer the question I asked the first time:  are you being sued in Magistrate Court in Cherokee County or the District Court?  HOW you answer makes a difference.  DO NOT send any notarized statement to the court for any reason.

10 hours ago, IBcharla said:

My intentions if, if my second offer is rejected, I would inform them, I have consulted with a Credit Councilor, obtained a Certificate for filing Chapter 7 with the Northern District of GA US. Bankruptcy Court and have filled out Forms and taken the Means Test, resulting in 'No Presumption of Abuse"  I qualify for filing Chapter 7. And, list the forms that I have filled out....  (Thought's.... anyone?)

If you are filing for BK7 just file.  Your attorney will list them as a creditor and Cooling and Winter will be notified along the BoA.  They will then legally have to drop the suit. You cannot pay them and then file BK7 and have that payment stand.  The trustee will likely see it as preferential payment and undo it.

10 hours ago, IBcharla said:

I have no intentions, at this time to File Chapter 7. 

Then leveling the threat is meaningless and will not get you a better settlement.  They know full well until you actually follow through and file it is a hollow threat they hear ALL the time from consumers hoping they will back down on the suit.  

10 hours ago, IBcharla said:

*Incidentally, I was looking over a list of Consumer Law firms on Avvo & reviewed your website, in consideration of my options.  I'm still undecided of choosing representation due to the nature of my financial situation)

It is NOT my law firm.  I do not own or work there.  We recommend them here for a few reasons:  they have served others we have referred there well.  They have an outstanding reputation in Georgia and through NACA.  They aggressively defend their clients against firms like Cooling and Winter.  

I still think you need to consult a few attorneys and discuss all your details because your situation is more complicated than the average consumer on these sites.  Most do the first consult for free.  Your choice.

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