Charged off amount amount versus amount sued for by the debt collector

[Dan001]

Is the charged off amount in you credit report supposed to be the same as the amount that the JDB is supposed to sue for? If they are different, will it be a defense towards invalidating the debt ?

[WhoCares1000]

The JDB can still request interest based on the contract so the amounts can be different. If you bring it up, that will be their defense.

[Dan001]

@WhoCares1000

If the calculations of the interest does not fit with the stated interest rate , what happens?; The amount sued for is lower than the one reported on the credit report and different from the one on the bill of sales. Does it not matter?

 

Thanks

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[BV80]

1 hour ago, Dan001 said:

@WhoCares1000

If the calculations of the interest does not fit with the stated interest rate , what happens?; The amount sued for is lower than the one reported on the credit report and different from the one on the bill of sales. Does it not matter?

 

Thanks

 

What is the difference between the amount charged off and the amount for which they are suing?  Give us an example.

[WhoCares1000]

OK, let's say the contract calls for 10% interest compounded daily and the charge off amount is $10000. Lets say you are sued 6 months after charge off (180 days). Based on interest, you would be sued for about $10,500 ($10,000 charge off balance plus $500 interest) plus legal fees as authorized by the contract.

[Clydesmom]

10 hours ago, Dan001 said:

Is the charged off amount in you credit report supposed to be the same as the amount that the JDB is supposed to sue for?

No.  There are several reasons why a plaintiff might sue for less than the full amount they are owed.  The answer can vary from state to state.  In addition to the examples already given another reason is the limits in small claims court.  Filing in small claims in most states is $100 or less but the limit in most states is $5000.  Filing in State or District Court can be as high as $450 or $500 with no limits.  Some Plaintiffs choose to file for less and stay in small claims court which requires less work and expense.  

5 hours ago, Dan001 said:

The amount sued for is lower than the one reported on the credit report and different from the one on the bill of sales. Does it not matter?

Depends on WHY they did it. If it was for their convenience or any other legal reason it is not a defense that will work.  If they are committing fraud then it would be but typically they file for more than they are owed not less when committing fraud.

[WhoCares1000]

If they are suing for less, then odds are it is for a legal reason such as jurisdictional limits as mentioned above and you cannot use the defense. If they other side was trying to commit fraud, more likely, they would sue for a higher amount, not a lower amount so you would have a tough time convincing a judge that the requested amount was due to fraud.

[Dan001]

@WhoCares1000. Am not talking about fraud , am talking about FDCPA violation, that is misrepresentation unless you state it clearly what is included in the amount. If there is no iteration or breakdown of what makes up the figure, don't you think that it might be a different debt that they are talking about?

[Dan001]

@BV80

$3502 and $3310. 

 

Thanks

[Clydesmom]

4 hours ago, Dan001 said:

Am not talking about fraud , am talking about FDCPA violation, that is misrepresentation unless you state it clearly what is included in the amount.

That is an issue to be decided at trial.  Some courts will challenge the total owed others will not.  If you are going to attempt a defense like this the burden of proof is on you not them.  The second they have a legal reason or reasonable explanation the court will rule against you.

[WhoCares1000]

This looks like a mistake in calculating interest or maybe a change based on systems.

I would have to say to be careful what you ask for because you might get it. You could get a creditor friendly judge who accepts the bona fide error explanation the plaintiff gives, allows them to amend their complaint to the higher amount, and then issues a judgement to the plaintiff in the higher amount because you admitted to the debt and only questioned the amount.

[BV80]

You said the amount for which you are being sued is different from the amount stated in the bill of sale.  What evidence has the plaintiff provided to support the amount for which you are being sued?  For instance, has it provided a charge-off statement that shows the same amount claimed in the complaint?

[Dan001]

@BB80

They provided a bill of sell and the charge off amount is different from what they are suing for and my credit statement has a different one

[BV80]

19 minutes ago, Dan001 said:

@BB80

They provided a bill of sell and the charge off amount is different from what they are suing for and my credit statement has a different one

Since we can’t see the charge-off statement, we don’t know what it includes.  It may include interest and fees that the plaintiff has decided not to include in the balance.

If their evidence does not show the amount for which they are suing, and they have NOT provided a verifiable explanation for the difference, in the event they file a motion for summary judgment, I would raise that issue in my opposition to the motion.

They have to provide proof of the balance they claim.  It depends on your state laws or court rulings as to what kind of and how much proof they must provide.  But, they have to provide something that shows the balance they claim is valid.

Here’s the downside:  Absent an acceptable explanation for the difference, they might request to amend their complaint to sue for the higher amount.  

[alwayswinning36]

17 hours ago, Dan001 said:

@WhoCares1000. Am not talking about fraud , am talking about FDCPA violation, that is misrepresentation unless you state it clearly what is included in the amount. If there is no iteration or breakdown of what makes up the figure, don't you think that it might be a different debt that they are talking about?

FDCPA claim is not a defense at all to a debt case. That would be something you would counter sue the plaintiff for. If you feel it is a legit claim, reach out to the attorney for the plaintiff and convey your desire to counter sue for the alleged violation. The chances are great that if there is merit to your claim they may dismiss your case. I am not saying they certainly will, but I have in my experience gotten cases dismissed on that basis. And in Texas, they cannot file for less than the amount owed just to forego filing in district court, however, the debt you mentioned is well within the jurisdiction limits of Texas Small Claims as the limit is $20,000.

[Dan001]

@alwayswinning36

Thanks so much. It looks like you really proffered a very viable option. I am going the route of counter suing, all the facts that I have point to the fact that they do not have the right information to sue me.

I will keep us updated here.

 

Thanks so much

[alwayswinning36]

2 hours ago, Dan001 said:

@alwayswinning36

Thanks so much. It looks like you really proffered a very viable option. I am going the route of counter suing, all the facts that I have point to the fact that they do not have the right information to sue me.

I will keep us updated here.

 

Thanks so much

Well now what are you saying they don't have the "right information" to sue you? Before you get all excited, the amount you could get on your own with a successful FDCPA claim if you win is $1,000.00. You won't get attorney fees, if you don't have an attorney handle that part of it. You say they allege you owe $3k or over that, so 3k minus 1k leaves 2k they could still collect from you. Having the incorrect amount they are suing for, as others have said, they can always amend their complaint to get that part right and add or deduct amounts as necessary. And personally I would consult an attorney for the FDCPA issue. The more costly it could be for them to pay the amount plus fees the better off you will be.

[Dan001]

Ok

thanks @alwayswinning36

[womanonfire]

On 1/12/2021 at 5:12 PM, alwayswinning36 said:

Well now what are you saying they don't have the "right information" to sue you? Before you get all excited, the amount you could get on your own with a successful FDCPA claim if you win is $1,000.00. You won't get attorney fees, if you don't have an attorney handle that part of it. You say they allege you owe $3k or over that, so 3k minus 1k leaves 2k they could still collect from you. Having the incorrect amount they are suing for, as others have said, they can always amend their complaint to get that part right and add or deduct amounts as necessary. And personally I would consult an attorney for the FDCPA issue. The more costly it could be for them to pay the amount plus fees the better off you will be.

@Dan001 OP can however, deduct all expenses incurred to bring the counter claim. Pacer fees, cost of printing, gas to printer or to meetings with attorney, time spent, etc. 

[WhoCares1000]

3 hours ago, womanonfire said:

@Dan001 OP can however, deduct all expenses incurred to bring the counter claim. Pacer fees, cost of printing, gas to printer or to meetings with attorney, time spent, etc. 

You can only deduct from your taxes legal costs that result in income that you are required to report (such as court damages from FDCPA claims) and only up to the amount you got from the court. Anything over that is considered income.

[womanonfire]

22 hours ago, WhoCares1000 said:

You can only deduct from your taxes legal costs that result in income that you are required to report (such as court damages from FDCPA claims) and only up to the amount you got from the court. Anything over that is considered income.

Expenses for the legal claim, not taxes lol. 

[WhoCares1000]

6 hours ago, womanonfire said:

Expenses for the legal claim, not taxes lol. 

You did not understand what I said. When it comes to legal expenses, you, as a person, can only deduct legal expenses off of any legal awards that you won and are required to report and nothing more. If you lose, you cannot deduct anything. You are also required to report any court awards as income.

[womanonfire]

On 1/16/2021 at 5:50 PM, WhoCares1000 said:

You did not understand what I said. When it comes to legal expenses, you, as a person, can only deduct legal expenses off of any legal awards that you won and are required to report and nothing more. If you lose, you cannot deduct anything. You are also required to report any court awards as income.

If a pro se litigant brings an FDCPA claim in court, reasonable expenses can be added to the claim in addition to the claim for statutory damages. So while you can't get attorney fees, you can add the costs of pursuit of the claim as part of your damages. 

@Dan001Please post updates when you have them!