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You Can Beat Credit Card Debt Collectors

You just received a certified letter in the mail from a law firm, you have a sinking feeling as you sign for this unwanted piece of mail, and when you open the envelope, your fears are confirmed. You are being sued by a credit card company that has come to collect what you left off owing them. All is lost, your world goes into a tailspin, and images of lost wages, raids on your little bank account, and possibly losing everything flash through your mind. Hopeless! You just want to find a hole and drop in it. But, guess what, you are very wrong. You don’t have to lose a thing, and my article will explain why.

In the past several years, most people who live on this planet have come to experience and feel the deleterious effects of the greatest recession in history. In January of 1990, credit card debt was at $214 billion, but by January of 2009, it had grown to $964 billion. As the recession began, people were rapidly losing their jobs, and thus, their ability to keep up with the payments on that debt. Good people were being forced into default on their accounts. So, what did the credit card companies do? They kept on lending, they kept on raking in profits, and they kept engaging in a relatively unknown practice of selling those defaulted debts to companies that had no connection to your original debt. This line alone should raise your eyebrows and cause you to say, “What?” Yes, the credit card company whose card you had been using sold your debt to someone else...and they, the credit card company, promptly washed their hands of your old debt. Stunning, isn’t it?

In 2008 alone, over $123 billion in charged-off debts were sold to companies that then pursued those debts as if they owned them. They don’t...at least not until you make a fatal mistake and give them the right. You see, when you signed the original agreement with your credit card company, you signed a contract with your original credit card company. Think about what I just said, because this is where winning your battle begins. Yes, you signed an agreement with your credit card company, but you did not sign one with the companies that bought your debt from the credit card company. Sound crazy? If they don’t have a right to your debt, then why are they coming after you? Because you don’t know your rights, they know this, and they collect billions of dollars every year at massive profits.

Say your original credit card had a final balance of $1,000. The credit card company sells that off to a collection company for $100. Say the collection company only manages to collect $500 from that debt. Not a bad profit. Understand why, then, they pursue these collections? And if I told you that these collection companies have no right to that debt, would that shock you? I mean, they all seem to be following legal procedures when they come after you, don’t they? Yes and no. Yes, they are following legal procedures to trap you in a debt you no longer owe, and no, they do not have any right to that debt...that is, they have no right to that debt until you give them that right. And, yes, millions of Americans make serious mistakes every year and end up owing a debt all over again, a debt that was written off long ago.

So, let’s first look at what NOT to do. Do NOT ignore the certified letter. Do NOT miss the court date. You will win if you follow what I am going to outline here, however, the clock begins ticking the minute you sign for that certified letter. Sign it, then begin acting on your rights immediately. Read the letter that comes from the court. It will state how many days you have to file an answer, the first answer meaning that, yes, you plan to defend yourself in court. You must do this immediately. If it is a magisterial court, you can defend yourself. If it is a higher court, then you need to retain a lawyer. If you opt to retain a lawyer, you do not need a high-priced one. After you have read my article, you can tell any lawyer exactly how to proceed, although he or she should already know this. Once you have answered the court summons, and you have told them that you definitely intend to defend yourself, the court will set a date for the hearing. Mark that date on your calendar as the day you will walk out of court a winner. Above all, do not miss that court date! If you do not show up in court, you will lose by default, which means that the collection company that is coming after you now owns the debt that was otherwise written off and had become worthless. Miss the court date, lose by default, and you owe money to blood-suckers who will garnish your wages and attach your bank accounts. Attend that court date!

Next, and this is very important, you need to file a “Request For Production.” Use the form I have outlined below.


Mail a copy of this request to the judge in whose court the hearing will be held, and mail a copy to the lawyer who is representing the collection company. Make sure that you send the letter to the lawyer at the collection company via certified mail, return receipt requested. By sending this to the lawyer at the collection company, you are telling him several things. The first thing you are telling him is that you may just know your rights, that he is going to have a battle on his hands, and most of all, it is telling him that he may just want to let this one go, because he knows that until you make a mistake, he has no right to the money he is claiming. And, in most cases, when this request for documentation is filed with the plaintiff, they go away and give up. They would rather concentrate on the easy wins, the ones where the person does not respond to the certified letter and, especially, the ones who do not show up in court. By filing the request for documentation, you have already begun to win, and they know this. If you follow through, you will win.

Now, let’s look at what you just requested. You have demanded that the lawyer representing the collection company produce ( and they are required by law to do so ) the original agreement with your signature. You have also requested that they produce all of the receipts for every transaction that you engaged in during the entire life of the use of that credit card. You have requested that they show what you purchased in each of those transactions, and you have requested that they produce your payment record. All of this is legal, and all of it is required in order for them to properly enter the court. Guess what? They do not have this documentation.

Because the original credit card company does not keep this information, they do not sell it to the collection agency. Shocking information, isn’t it? All the collection company has is your name, last known address, the amount you “supposedly” owed when you made your last payment, and the account number. That’s it. So, without a signed agreement with your signature, how can they collect on that contract? They can’t...unless you let them, and if you do not know your rights, you will let them. When the collection company filed suit, they did not attach a copy of the original contract with your credit card company, and this is required by law. The judge knows this, but he cannot act as your attorney, so he has to sit on the bench and watch you sink yourself if you do not follow your legal rights. So, here they are.

On the day of the court hearing, the first thing you want to have in front of you is this statement:

1.) Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim.

This statement tells the court that you cannot claim to know whether or not this is actually your debt, because no proof of that ownership has been provided by the collection company, Plaintiff. Read, or quote, this statement, and add nothing further to what it says.

Now, a trick here is used when a plaintiff does show up in court in an attempt to trip you up and win through trickery alone. They will call you to the witness stand, brandish a copy of the original contract issued by the credit card company and ask you, under oath, if you are denying that you signed this agreement with the credit card company. If you say that you are not denying that you signed the agreement, you lose. You simply state that you are without knowledge sufficient to form an opinion as to the accuracy of the Plaintiff’s claim, and add nothing more. You can repeat this as often as you need to until the judge loses his patience and orders the plaintiff to sit down. The plaintiff is waving a blank piece of paper in front of you. It does not contain your signature, and it is not the original signed agreement. It is worthless.

For your next step, you state the following:

2.) Plaintiff has failed to state a claim upon which relief may be granted -


Either no statute was cited, or the complaint fails to state facts sufficient to constitute a cause of action against you, the defendant. Listing the facts of the case may be enough to file a claim, but the plaintiff merely says the defendant owes the money, and this is not enough.

Plaintiff’s claim demands monies for an alleged debt for which no proof of said debt, nor proof of ownership of said debt, has been verified and exhibited.” You want to state this.

3.) Defendant demands for proof of Plaintiff’s ownership of alleged debt.


The law is very clear that the plaintiff has a legal duty to attach any necessary documentation to everything he has filed in court, including in the original certified letter that was sent to you. Did you see any documentation in that letter? No. Why? Because the plaintiff has none. He knows that, the court knows that, and now, you know that, too. Legally, the plaintiff lacks capacity to sue. At this point, you may read the following statement to the court:

The plaintiff is required, by law, to trace in his statement of claim the derivation of his cause of action from his assignor so that the defendant may challenge the plaintiff’s claim that he is the present owner of the cause of action.”

What you just told the judge is that the plaintiff, in this case, the lawyer representing the collection company, has not presented proof that he, or his company, owns the debt. Why does he own it? Did you sign an agreement with him? Is he a credit card company? The answer is, no. You do not owe him, or his company, anything. He is required, by law, to show why you owe him, or his company. He will not be able to prove this...unless you have made one fatal mistake. If you have been scared into making any payment arrangements and have already made payments to his company, then I would seek legal help in unraveling their tentacles. Cardinal rule - do not make payments, or agreements to make payments, to any company that is calling about a debt that you owed someone else. Doing so creates a contract that may be binding.

As in most credit card cases (depending on your state), when a claim is “based upon a written agreement, the pleading shall state specifically if the agreement is oral or written.” If the credit cardclaim is based upon a writing, then the plaintiff must “attach a copy of the writing.” This means that, once again, the law requires that the plaintiff produce the original contract with the credit card company bearing your original signature. No blank contracts, no “supposed or forged” copies. The original, and only the original, will do.

Also, in most states, if the lawyer filing the claim for the collection company knowingly files a suit without having that original contract in hand, he is in violation of the law. He has to either have that contract, or he has to have someone with him coming to court who has personal knowledge of that signed contract, and he has neither. When he signed the suit papers, he stated that he had these proofs by his signature. A lawyer filing such a claim should be prosecuted, he deserves to be sued, and you can do so if you have a lawyer representing you.

Next, we come to:

4.) Insufficient specificity in a pleading.


When the lawyer for the collection company seeks damages based on a contractual relationship, an agreement or contract, and these damages are ascertainable based on that contract or agreement, then the lawyer is required to plead those damages with specificity. What this means is that the court is going to require that lawyer to include facts concerning when you engaged in purchases that led to that debt, the amount of those purchases, and what those purchases were. You can cite the following in court:


Citing Marine Bank, 25 Pa. D. & C.3d at 267-69. A “defendant is entitled to know the dates on which individual transactions were made, the amounts therefore and the items purchased to be able to answer intelligently and determine what items he can admit and what items he can contest.

Next on the list:

5.) Defendant cites Failure of Consideration:

Whereas no exchange of money or goods occurred between the plaintiff and the defendant, therefore, defendant cites Failure of Consideration.”

What you are saying here is that there was never any exchange of money or items of value between you and the collection company, between Plaintiff and Defendant. You tell the court that you never entered into any contractual or debtor/creditor arrangements with Plaintiff. Consideration is a necessary fact that the plaintiff is required to show in order to prove that you and the collection company had a valid, binding and enforceable agreement or contract. Consideration means that the collection company was giving you a service in exchange for your money. Were they a credit card company? Were they giving you credit? Not likely. Therefore, they were not giving you any “consideration,” and you, therefore, do not have a contract with them.

Furthermore, the collection company would be required to show the terms of that agreement in court. Where is their contract with you? There is none. Because they cannot produce any such agreement or contract, this is “failure of consideration.” They have no case, just one more reason they knew that they should not come to court, one more reason the judge is compelled to dismiss the case against you.


Next, we come to:

6.) Repudiation - Plaintiff is not named in any alleged agreement that is purported to have been entered into between Defendant and Plaintiff.

Here, you state that the plaintiff has not produced any contract between Defendant and (your collection company), naming Plaintiff as party to such contract. Defendant repudiates any claim to such a contract existing. As there was no “meeting of the minds,” a necessary element of a valid contract, no contract exists. The plaintiff is not an assignee for the purported agreement, and the plaintiff has not produced any evidence that supports any related claims or assumptions. The lawyer for the collection company has failed to produce any document that shows that your original credit card company has named him, or his collection company, as assignees, nor has he even shown that the original credit card company has any knowledge of his actions, or that the original credit card company has even given this lawyer, or collection company, all rights and control.

If a credit card company did assign the debt to a third party, the creditor would then lose his rights to collect later. This means that your credit card company probably took a tax credit, an insurance write-off, or some such action that makes the credit card company unable to collect the debt after that point. They destroyed their records, and they moved on. The collection company does not have the original agreement with your signature, and they know that they have no case against you...unless you make the mistake of making an agreement with the collection company and then making a payment on it. Since there was no “meeting of the minds” between you and the collection company, a necessary element required to create a legal and binding contract between the two of you, their claim is repudiated.

If your original credit card company had made an agreement with the collection company, you were not a party to those terms. Just because an assignment clause exists in a credit agreement does not mean that it is sufficient to create a new obligation with the collection company. The assignment clause merely takes away the rights of your original credit card company to collect if they decide to assign it to another company, in this case the collection company. The collection company would then have to offer you a new contract, you would have to agree to its terms, and you would finally have to sign this new contract. If you have not signed a contract with the collection company, you owe them nothing.

In court, if you had to argue this, you would simply state that Plaintiff is not an assignee for the purported agreement, and Plaintiff has not offered any evidence to the contrary. As there is no proof offered, assuming that it exists would create an unfair prejudice against the Defendant.

Now, we move to:

7.) Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plantiff


You can simply state, “Whereas no relationship exists between Plaintiff and Defendant, and whereas Defendant never signed a contract or agreement with Plaintiff, Defendant cites Lack of Privity.”

Privity is the legal term for a close, mutual, or successive relationship to the same right of property, or the power to enforce a promise or warranty. No relationship exists between the collection agency (Plaintiff) and Defendant. Defendant never signed a contract or agreement with the collection agency. A collection company cannot collect any amount of money that is not permitted by law or by agreement. Here is the law:

It further states that the debt collector cannot collect any amount of money that is not permitted by law or by the agreement.

Because there is no agreement between the collector and the alleged debtor, no collection can be sustained.” (Fair Debt Collection Practices Act)

Nearing the end of our list, we come to:

8.) Plaintiff's complaint violates the Statute of Frauds

Plaintiff claims to have a contract with you, thus, Plaintiff has to produce it, because such a contract falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the complaint was not in writing and signed by Defendant or by some other person authorized by Defendant and who was to answer for the debt, default, or miscarriage of another person. In order for the collection company to state that it had an agreement with you, it has to show how it was going to benefit you. For example, was the collection company going to issue you credit like a credit card company? Highly unlikely. Therefore, to say that it had a contract with you is fraudulent, because the collection company cannot provide the same services as the credit card company did. It would be like the credit card company selling your contract to another company that required you to sell your house to them at the end of one year. This new requirement would not be something that you agreed to in the original contract, and since there was no “meeting of the minds,” you did not come to any agreement with the collection company. Here, then, you simply cite statute of frauds. Research your state’s case law to see how your state stands on this point. Nonetheless, because the collection company cannot provide the same services as the original credit card company, it is breach of contract, thus, we invoke “statute of frauds.”

Lastly, we come to:

9.) Scienti et volenti non fit injuria - “An injury is not done to one who knows and wills it.”


The laws in this country do not provide a remedy for a collection company that knowingly and voluntarily takes on a bad debt and then goes after the debtor in an attempt to collect that alleged debt. What the law says is that an entity cannot place itself in harm’s way and then sue for damages. Thus, “scienti et volenti non fit injuria.” That would be like you standing in front of a speeding car, then suing the driver for damages. You put yourself in harm’s way, you deserve no damages. The collection company bought a debt that was bad, then wanted it paid. Just cite scienti et volenti non fit injuria, and the judge will know what you mean.

Most collection companies know not to go after debts that are past the statute of limitations, but, there are still those who do, so you should know that most states will not allow claims on debts that are more than three years old. In some states, that statute of limitations is four years. You want to research this so that you know what your state allows, because the collection company pursuing you may have waited too long, and you may just have a right to have the suit thrown out on this technicality alone.

As I stated earlier, quite often, the credit card company has made an insurance claim, or taken a tax deduction, and this is known as accord and satisfaction. This renders the debt satisfied, and, legally, no one can attempt any further to collect this debt. Your collection company knows this, yet they are still trying to take you to court, because they know that if you do not show up, the law then reverses everything, and you end up owing them. So, go to court. Just the fact that you file an intent to defend yourself lets them know that you are aware of your rights, that their best bet is to call off the bluff, and that they should go find some other person to try to fool into entering a contract with them for a debt that is otherwise uncollectible.

Remember that the Fair Debt Collection Practices Act requires all debt collectors to validate the collection upon request of the purported debtor. The collection company will not be able to, so, stand your ground with everything that I have written in this article. They deserve to lose, because they know they are acting illegally, yet they use all kinds of trickery and deceit to win. You can fight back by simply using the law and your legal rights.

Make sure that you check every rule that I have quoted to make sure that there are not any deviations in your state. State laws will vary, and State laws vary from Federal laws, so do your homework. I am not a lawyer, but I used everything I have written herein to defend myself against a collection company, and you can already guess what happened. They did not show up in court, and the judge dismissed the case against me. It worked for me, it will work for you. And just in case you are not comfortable arguing in a court of law, if you can afford it, obtain the services of an attorney who is not too expensive.

You have a right to win. Good luck to you.

Brian Gray

Use this form for Request For Production
Use this form for Request For Production

Additional Materials For Your Help

Here is a very valuable quote I found some time ago, and if someone could tell me who the author is, I would gladly note it.

"In the end, this article contends that plaintiff-creditors file improper complaints as part of a pecuniary calculus in the collection industry:

Original and secondary creditors file objectionable complaints (and cannot amend those complaints when challenged) since original creditors do not maintain the credit card debtor’s account documents at the outset of the creditor-debtor relationship (which means that secondary creditors cannot receive account records as part of an assignment);

and, necessary account records are not retained because it is more economically efficient to file many unsupported claims than it is to expend resources in document retention and to file fewer substantiated claims.

Unlike federal courts, which require notice pleading, Pennsylvania courts demand fact specific pleading from both plaintiffs and defendants. At the outset, a pleading must set forth the “material facts” of the cause of action in a “concise and summary form.”

As in most credit card cases, when a claim is “based upon a written agreement, the pleading shall state specifically if the agreement is oral or written.”

If the credit card claim is based upon a writing, then the plaintiff must “attach a copy of the writing.”

Finally, “[a]verments of time, place, and items of special damage,” such as credit card charges, must be “specifically stated.”

Please Do NOT Send Me Private Emails - Here's Why

I understand that some people think that they need to keep their information private for whatever fears they may have about a creditor, but those fears are unfounded when you are on this blog anonymously in the first place. When you send me a private email, I cannot simply hit reply. Doing so sends my reply somewhere into the ether, and I get a response that the message failed. So, I end up wasting my time, and you end up without a response. Please do not send me private emails with your requests for an answer. I simply cannot afford the lengthy time and effort it takes to figure out how to jump through all of the hoops necessary to make sure that a reply gets to you. If you cannot post your question here, it will not get answered. I hope you can understand. I wrote this article to help others, but the amount of time it takes to continue helping everybody (for free) means that I cannot triple that workload so that people can get a private response. it is simply impossible. I appreciate your understanding.

To Read More By Author Brian Gray

Brian Gray has been a prolific writer for many years, and has written on a variety of subjects. If you enjoyed this article and would like to read more by this author, simply click on the name "Brian Gray" next to the author's photo above, then click on his name in the box that appears, and you will see a list of his current writings.

Comments 4427 comments

filmbob 4 years ago

If my case actually goes to trial tomorrow, I'll let you know know how your suggestions worked out for me. Thanks for the info.


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

My sincerest best wishes to you. I honestly feel that the vast majority of debt collection companies are heartless, calculating crooks who ought to be outlawed. If a company is owed money, and that company decides to let that debt go, as far as I am concerned, that debt is over. For someone to come along and try to "buy" that debt, then try to abuse the way laws are written so that they can then entrap someone into paying them instead of the original owners of that obligation, to me, there is no word low enough to describe such a practice and those who engage in it. I hope you win your case, and I hope you did your homework.

In my case, after I won at the first court level, the bloodsuckers gave it one more try. They appealed to a higher court, so I had to pay a lawyer a small fee to make them go away. Once they realized it was going to end up in the hands of a competent lawyer, they went away permanently. I will be interested to hear how you made out. Thanks for writing.


filmbob 4 years ago

Yes, they abuse process, illegitimately place info on credit reports to enter into an illegal contract under duress with them. The attorney I am going up against filed over 1,300 debt cases in MD courts just in May, June, and July this year. I have yet to see a case that was defended by a consumer (maybe 1%) that she has appeared in court or won unless the defendant failed to appear too. (Depends on the Judge). I requested that the person who signed the affidavit, to appear as my witness and to provide his complete record of employment. Have not heard back whether he will show up to subsequently face charges of perjury. My case is at 1:15 pm, I'll post what happens. I hope she/they show(s), I think I have enough ammo to win or I will appeal.


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

Good going. Let me know how everything turns out.


filmbob 4 years ago

Okay. I showed up for court and the attorney and the person who signed the affidavit showed up. While we were sitting waiting for the court doors to open, the attorney kept asking if "my name" was here. I ignored her. We got into the court room and the judge quickly went through some rent and lanlord judgments. Then they called our case. I stood up and the attorney, scared to death it seemed, asked the judge if she could talk to me before trial and that she had been calling my name. I told her she could, probably a mistake. I sat in the conference room with her and she said this case looks like it might be fraud, I am going to ask the judge to give you 60 days and I'll send you an affidavit to fill out with you ssn, DOB, and drivers license number saying that you do not think this debt is yours. She added, make sure it is notarized. Well she made it sound like it was a way for me to get the account removed as a favor for not taking her to trial. I told this to an attorney friend of mine and he said do not do it. Just show up for trial and defend yourself. If they could have proved their case in trial they would have wanted to then. They are trying to get me to do admit to something or perjure myself. The judge could not believe his ears, the Plaintiff's attornety was appearing to try to help me by giving me time to prove this may have been opened fradulently. I may write amotion to strike the affadavit as hearsay and strike the bill of sale that does not link me or the account to debt in question and just have it thrown out. I think it will be more fun to do it in court though and watch her get mad. I learned to keep my enemies closer and offered to have lunch with the attorney and the affiant. They politely declined but she was open to helping me and she told me "Thank You" when I agreed to wait 60 days. She thinks I plan to dance with her but I really just liked the idea of having a little more time to prepare for the case mentally mostly. I do not know what I am scared of, I know I should win and the judge said to me, "Young man, you make sure you show up to defend yourself on October 10th, put it in your calendar." As if to say, I already looked at this garbage and I want you to defend yourself against these people. He seemed very distressed about the game she played with me. Put his head in his hands and rubbed his bald spot. I sit in on a lot of his trials because all of this preparation for the case has made me consider going to law school to help defend consumers against these monsters. Plus I wanted to see if he would work with Pro Se defendants or if he snubbed them. He is very friendly and patient with pro se defendants and makes it clear he can act as their attorney from time to time but phrases questions in aw way that leads the defendant down the right course of action. I really believe that if I had told the judge I would wish to proceed, she would have dismissed the case. Why? Because she has no case. The affidavit filed was signed by someone with no personal knowledge. This judge sends people to jail sometimes for perjury! Not only that, but once he is found guilty of perjury on this case, the court would be obligated to look into any other affidavit he signed and vacate all of those judgments. It could have cost the debt collector millions and affiant the would have lost his job. Not only that he would have put sanctions on the attorney for bring forth a fraudulent lawsuit. I noticed last night that the last statement where a payment was made the statement said account closed, the last statement where the charge off occurred had a balance $523 more than the last statement. This had to have been from interest and fees that the Debt collector are not entitled to collect. This means they are suing for more than they are entitled to which is fraud, a violation of the FDCPA, a violation of MD Code, Mail Fraud, and multiple violations of the FCRA for reporting inaccurate information (well all of it is, they don't have the right to place anything on my credit report if they do not own the debt) This could get expensive for them. I think I will call the original creditor and see if they indeed deleted all of the records of the account, then ask the attorney to send them everything they might have to me for my investigation.


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

So far, so good, but some things I would not do. Do not contact the original creditor, and do not have any contact with the plaintiff's attorney other than through your attorney. Without a degree in law, you could very easily say or do something, especially if it is in writing, that could cost you heavily. Even if you had asked the judge to dismiss the case, only if he had done so "with prejudice" would you then be free of this. If he simply dismissed the case, they could still appeal. If they appealed, the case would move to a higher court, and there you would definitely need an attorney. The fact that a court date was set as an outcome of your recent hearing means that you should speak to an attorney about what to do next. A good attorney will know what to do, and you should be able to get an attorney who will take the case for around $500 (on average).

What the plaintiff's attorney was trying to do by asking you to sign the statements offered was to entrap you. Always remember, the plaintiff's attorney NEVER has your best interests in mind. Under no circumstances should you do anything that attorney asks without first consulting an attorney who is on your side. One thing is for sure, make sure you meet all deadlines for this case that you now have scheduled. And above all, speak only to your attorney. All correspondence between you and the plaintiff should be through your attorney only.

Good luck to you. You are going to win.


filmbob 4 years ago

Thanks for the advice. I actually have Lemberg and Associates representing be for the FDCPA and FCRA violations Portfolio Recovery has committed against me in this case. They will get me $1,000 and their court costs. They will not represent me in this case but advised me to write a motion to dismiss, a motion to strike the affidavit as hearsay, and strike all of the evidence as well as Motion to dismiss due to the reasons listed above in this article. If she had me in court, she would have proceeded with the case. I am now wondering if the person she brought with her was really the person that I called as a witness to my Defense, the person who signed that he had personal knowledge of this account and signed under penalty of perjury that he did. He doesn't. They still have not sent his Record of Employment I requested. I wonder if that man really exists. Imagine if every default judgement he signed an affidavit for was overturned thanks to my case! That would be a worthy blow to PRA. Maybe I should go back to school and pick up a law degree to help consumers fight these animals?


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

Whoever this attorney is that is representing the plaintiff in your case, she sure seems to have made enough money that she has the time and wherewithal to fight all the cases she wants to, even to the point of exhausting the legal process. It's a shame these immoral lowlifes are allowed to do what they do with regard to the misery of others, even more shameful that they think they are really owed money that does not belong to them. You mention that she brought someone with her to one of the court hearings. It was probably someone from her office. She is playing a game, and it's a shame that all lawyers who engage in this practice aren't put behind bars. They make too much money trading in the misery of fellow Americans. When a debt holder has walked away from a debt, the person who owed that debt is free to pick up his or her life and try to start over. It is hurtful to our economy to allow these lawyers and collection companies to abuse the misfortune of others.

Hang in there, and continue to fight the good fight. I believe that what I wrote in this article may help others to start turning the tide against these unscrupulous people.


filmbob 4 years ago

She said only 1% fight her and that is her loss rate as well. I really like the Scienti et volenti non fit injuria defense you posted. Do you have any case law that shows that actually worked? Wouldn't that turn this debt buyer business upside down?


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

There was a great article by one of the law professors at a leading university that I read once, and I wish I could locate it for you, but if you Google the words "scienti et volenti non fit injuria," you will eventually come upon that treatise. As for cases that have been won using only this defense, no lawyer goes into court and pins his or her hopes of winning on only one defense. They gather and employ as many defenses as possible. Thus, my article lists all of the ones that help to completely blow away the plaintiffs.


filmbob 4 years ago

Sounds like a sound defense in itself. They are investing in something and you can not collect if you take a chance on an investment and lose. I sent the discovery request. I doubt I'll hear anything back from them. Next I think I am going to just file a motion to dismiss. Use your arguments plus attack to strike the exhibits and the affidavit that was produced on hearsay.


filmbob 4 years ago

Not a motion to dismiss but a summary judgement for the same reasons. I could just wait it out and I am certain she will dismiss the case before I call their affiant/employee to the stand.


benedictfc 4 years ago

Hello Brian,

I just came across your excellent post. Thank you for summarizing how to translate common sense into legalese (i.e. how to call a bluff in court language). I and many people I know want to be able to use honest, legitimate and effective methods to counteract deceptive practices of unscrupulous collectors.

I have several questions for you related to the validity of collection agencies claims on alleged CC related debt.

Is it ok to post that here, or should I send you a PM and you can decide whether to post it or not. I don't want to put any incriminating details out on a public forum.

thanks.


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

Hello Benedictfc,

Sorry it took so long to be able to answer your question, and thank you for your kind comments. I wrote my article because of the countless thousands of good people who have seen their lives ruined by heartless collection companies going after their sad misfortunes. I hope more people will continue to read and pass along the information I supplied, even seek legal representation, and help put an end to this shameful practice. Plain and simple, if a company has given up on a debt that a person simply could no longer afford to pay, then the debt should be forgiven and forgotten. Let these people get back on their feet so that they can live again. These bill chasers are an unchallenged blight on America that has ruined so many lives, and this is what is holding this country back. The poor get poorer, and the rich get richer. It really has to end. Maybe when enough people read this article and put it to the powers that be, we can legislate some change for the good. I honestly think that there are more good people who have suffered from the Great Recession than there are deadbeats who simply don't care about paying their bills.

Brian


benedictfc 4 years ago

Brian,

I so agree with you. The deck is stacked against honest people who are enticed/induced/corralled into using a financial system they are not educated in but are still preyed upon (like getting a batch of 5 to 1 leveraged chips in Vegas without knowing how to play the dice game but billed for losing the chips afterwards).

It's not fair, and these collectors represent the "insult to injury" portion of the program. Also, if you screw enough people over with a big enough (fictional) corporate bottomline, you'll get bailed out! If you barely have enough money but try to do the right thing, you'll get punished for it! So, yes, thank you again for showing folks how to use the truth and the law to get even.

My questions relate to what I've seen around me with friends and family the last couple of years. I'd like to give you a real life scenario and would like to hear your suggestions for how it could be dealt with best.

Scenario:

Several credit card offers were responded to online (personal and business (sole prop) and credit was issued, back in 2006/07 in a State with a statute of limitations of 3 years. Last active payments were made in May/June 2008 due to dispute over debt owed (including linked accounts with someone else who went "underwater") and inability to keep us with usurious interest charges and fees.

So far not responded in writing or by phone to any communication attempts from issuers and collectors since. Also not acknowledged any debts or made any further payments since. Received many first class mailings but no certified letters that were or had to be signed for. A few accounts are still held open by original issuer, most were sold off (a few several times) to third party collectors.

The main objective is to clean out the credit report asap to rebuild it to a reasonable score. The current report says that if nothing else happens in the meantime (status quo), by 2014/15 all these negative remarks have to be removed, but waiting till then is not preferred.

How would you handle this? Would you just wait it out another 2 years (as long as no court summons has been issued), or would you recommend to go after these collectors and call their bluff to get them to stop and get the credit score cleaned up now?

Specific questions:

1. I hear a lot of mentioning that the plaintiff needs to produce the original "signature" and document in hardcopy. How does that work in the digital age? Would this be a photocopy of a page where the "I agree" box is marked, or a name is spelled out? How can anyone prove who did this and when? - Unless someone took a screenshot at the moment of acceptance, encoded it with a foolproof time stamp I don't know how else one could prove it. Will this "no original signature", and/or "no signature by both parties" = contract is invalid argument hold up in court? (see next question)

2. for a contract to be valid, don't both parties have to sign the agreement? Or is it enough for an offer to be accepted by one party for the contract to be valid? In other words, where's the credit card company's signature? Technically, can a live and blood individual make a contract with an impersonal corporation, or does it have to be with another live and blood individual representing the corporation? Does this make any difference in court? Is there a specific UCC code that legally stipulates what a contract must look like?

3. what if you don't receive a court summons or certified mail with request to respond, but want to proactively approach everyone who alleges to have a credit card debt claim on you (collectors and original issuers), how would you go about it?

4. is there a simpler way besides going to court to force collectors to remove debt allegations from your credit record?

thanks.


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

Dear Benedictfc,

Thanks for writing and putting your questions out there. Hopefully, this place will become an ongoing seminar for people to share their experiences and knowledge. I would sincerely love to see the practice of debt collectors abolished by law. Till then, we have to keep helping to educate people to their rights.

To answer your questions, please remember that I am not a lawyer, so I am only advising you as to what I have studied and what has worked for me. In my case, I went to the first court event and represented myself...and I won. However, the blood suckers filed an appeal to see if I was up to the bull crap that they intended to pull, so I hired a lawyer who, for $600, filed the necessary paperwork to put an end to their charade, and that was the end of it. You see, once they appeal, the court level it gets moved to is a higher court with stricter standards. That's where you absolutely need competent, but inexpensive, legal help. No need to pay high fees for what this requires. You can even get free help from some organizations. But, if they appeal from the first court event, the appeals process is used (abused) by them to trap you, because there are some nasty maneuvers that they can employ at that level. So, competent legal help at that level is a must. It's a pain in the wallet, but it puts the nail in the coffin.

Regarding getting preemptive and going after debt collection agencies before they have filed a suit against you, I would check with a lawyer to see if that is possible, because, frankly, there may or may not be remedy. If they have erroneously reported to a credit reporting agency an amount owed that you did not owe, then you have a reason to pursue them with legal action. However, if they are only sending you letters and phone calls for the debt, unless they violate the Fair Debt Collections Practices Act, you may not have much recourse. Check with competent legal help.

As for going after them, I would almost guess that there is not much you can do until one of those collection companies files a suit. Regarding producing the original signature, yes, when they sue you, one of the required proofs is the original signed document that constituted your contract, and, yes, it has to be "the" signed contract. They can allude to this contract all they want to, but without producing the actual item, that argument is null and void. In this digital age, there are very few legally binding contracts that you can enter into without physically signing a piece of paper with the legal terms of the contract attached to the signature.

As far as I know, yes, a person can accept some contracts by simply signing the terms agreed to, whereas other contracts require the signature of both parties. This is complicated, but there are legally binding contracts that only require one signature. I won't take the time to explain all of the varieties here, but suffice it to say, if you sign a contract with any major credit card company, they know what you have to sign in order for them to collect their end, and they would be very foolish if they did not follow correct legal procedure in setting up such contracts. However, once they have you paying your monthly charges, what they want to do with all of that original paperwork is up to them. It is obvious they don't pass it along to debt collectors.

To your question of proactively approaching everyone who alleges to have a credit card debt claim on you, I would consult with an attorney. I can't say that it is possible, and I can't say that it is not possible. This would also go for your question of there being a simpler way to force debt collectors to remove debt allegations from your credit record.

If you have read my article, then you know that you have a lot going for you. Don't lose the fight. Keep the faith and stay alert to your rights. Good luck to you, and keep us posted.


benedictfc 4 years ago

Dear Brian,

thank you and bless you for the attention and care you have given to answering my questions. Also thank you for clarifying you are not a lawyer and are not supplying legal advice. If you were I would have to look at what you are writing from a different perspective (considering professional affiliation and obligations).

If I may summarize my understanding of what you wrote:

1. let sleeping dogs lie when it comes to going after collectors. Unless a third party is brought in (court) with enforcement levels that shouldn't be ignored, wait it out or consult a lawyer. Remedy seems highly unlikely unless it can be proven unequivocally that the debt is not allegedly owed or there was no contract agreed to.

2. in case of appeal in court, definitely use a lawyer to draw up the paperwork and stick to your guns. Appellate court is stricter.

3. assume that credit card companies have created enforceable (digital) contracts, but that once the debt is sold off all bets are off, and that the chances a third party collector will have or be able to get a hold of the required documentation to make a convincing case are slim to none.

4. stay the course, don't get entrapped, don't incriminate yourself and spread the word to other honest folks who are letting their lives being ruined by buying into what those bill collectors are trying them convince off.

does that sound about right?

thanks!


benedictfc 4 years ago

one other thought.

Can you put these collectors on notice to stop bothering you with calls, emails and first class mail unless they have a legitimate claim against you?

Or, does that just invite them to take you to court sooner or hassle you even more (because you're actually responding), given that unless you give them a strong enough reason to quit contacting you there is no incentive for them not to do so.

thanks.


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

Dear Benedictfc,

To answer several of your questions, yes, when a creditor has written off someone's debt, a debt collector may buy that debt, but the debt collector does so at their peril, because they do not have a contract with the debtor. They have to trick the debtor into a contract, and that can be done by getting them to agree to pay the debt to them. That, then, becomes an enforceable contract. So, if a creditor gives up on a debt, the debt is essentially done. A debt collection agent may purchase that debt if they want to, but they are not the ones who signed the original contract, therefore, they cannot ask the debtor to pay it to them. This is all covered in my article. So, unless the actual original debtor is coming after you, you can avoid the debt collection company.

If a debt collector calls you, simply hang up. Do not tell them who you are, do not identify yourself. If they ask you if you are...and they then name you, followed by asking you if this is your correct address...simply tell them nothing. Demand that they cease and desist from calling your phone number. You may have to find out who they are so that you can get an address, but once you have obtained their mailing address, you can send them a certified letter demanding that they cease calling your phone number, and at that point, they are required to stop calling...by law.

There are a number of laws that dictate what a collection company can and cannot do, and if they cross those lines, you can sue. They cannot call you at work, the cannot divulge your debts to anyone, they cannot send you notices that identify their collection agency function anywhere on the outside of their envelope or any other correspondence.

So, you may have to stall them until they wear out and give up, or sell the debt to some other bottom feeder, and that bottom feeder takes over trying to collect the "debt." Bottom line is, the only one with a legal right to your debt is the entity with whom you entered into a binding and legal contract. In most cases, that is the original credit card company, or such company that you signed with. They cannot re-assign that contract without your approval.

It is hard to stop some of the asinine actions some collection companies engage in, but you can win the war of endurance by not giving them what they want, and what they want is for you to answer your phone, give them your identifying information, talk to them about your debt, agree that you owe the debt, then agree to make payments on the debt. Take none of these actions. Give them nothing but silence until they either give up, or roll the dice and take you to court hoping that you are one of millions who does not know your rights. And if they take you to court, you already know what to do...read my article and follow the instructions.

Keep the faith. You will win.


benedictfc 4 years ago

thanks for confirming it again in great detail.

Nobody I know has purposely signed a contract with a debt collector, therefore there is no contract unless entered afterwards through self-incrimination. The key is to avoid falling into their trap.

One follow up question. If you contact them to tell them to stop calling or emailing you (at work), what are you acknowledging? That you are the person they are trying to contact? How would you phrase it without self-incrimination? ("I have no contract with you, stop harassing me"?). You recommend doing that with a certified letter. That makes sense.

thanks Brian!


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

You're welcome. To answer your question, the old wisdom of "the less you say, the better" works when contacting them. Being overly wordy can lead to ultimately saying something that they can then try to use against you, even if it is "cut and paste" so that they can take it out of context. You can't take back what you have said in a taped telephone conversation. Better to never have said it. There are only two ways that I can think of wherein you might necessarily be in contact with them, outside of actually being in court, and that is, firstly, if they call you, and secondly, if you send them a letter demanding they cease and desist. If they call you, tell them to cease calling you. Say nothing further, then hang up. Never call them. If you choose, some of the people hired by low-paying companies to make these annoying calls will actually goof and let you take control of the call, in which case, you can take charge and, without giving them any information, demand to know who their company is and what their address is. An example of this conversation would be, "May I ask who's calling? And who are you with? Your company name and address?" Once you have that, wish them a good day, and hang up. Then, write a letter stating the telephone number that has been called, that you are the owner of that telephone number, and that you are herewith demanding that they cease and desist from calling that number. Send that letter certified. Once they receive that letter, they can no longer call.

Technically, they are required to cease and desist from calling once you make the initial demand, but without that letter, you would be hard pressed proving in court that you made the demand. They know this, so they just ignore your verbal orders. You would have to subpoena their recordings, and that would be extremely costly and difficult. However, they know what a certified letter means, and that is that you may just follow through with a lawsuit against them.

So, to summarize, do not make any efforts to contact them. None. The only time you want to contact any collection company is when and if you are being taken to court and you have to file copies of your legal proceedings. If it gets that far, and you do the things I have outlined in my article, they are going to realize that they made a big mistake pursuing you.

Most collection companies know that what they are doing will not hold up in court if the person they are pursuing is wise to their legal rights, so they wear out and go away. They, in turn, might re-sell the debt information to some other collection agency, and you start getting letters all over again. The smart agencies go away, the bottom feeders take you to court. Either way, time is on your side.


benedictfc 4 years ago

got it. thanks.

one more :) what if they start emailing you at work?


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

They are not permitted to contact you at work.


benedictfc 4 years ago

thanks. I will include that in the letter: no calls or emails.

one more question... I have noticed on the credit report that the collectors have submitted unprovable information that I/someone owes them a debt. What is the best way to dispute that and force the collectors to change their reporting to "not owed", thus cleaning up the credit report?


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

You have to contact the credit reporting companies that are showing this adverse information and tell them that the information they are showing is in dispute.


benedictfc 4 years ago

Brian, I really appreciate your willingness to answer my questions as things get clearer for me step by step.

therefore, here's my follow up question: when I tell a Credit Reporting Agency that their information is in dispute and they contact the CA about it, what does the CA have to provide to to the CRA prove the debt is legitimate? Can they? How can I use this process to get the adverse information removed?

thanks!


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

If I recall correctly, the credit reporting agency does not get into the details with either party, so once you tell them you are in dispute with the collection company about any particular debt, they either remove it, or mark it as disputed. Credit reporting companies, believe it or not, do not do much to verify what is given to them. They just take what is reported and report it. That's why even false information can get on someone's credit report, and if that person does not check their credit record, they may not even know that they have a false bad statement on there.

It's been a while since I studied that particular aspect, so I would simply contact the credit agency and tell them this item is in dispute and tell them that you want it removed from your record. They may just comply without asking any questions.


benedictfc 4 years ago

Thanks! I will do so and will let you know what happens.


filmbob 4 years ago

Went to court today. Summary Judgement was denied in favor of the Defendant for insufficient information!!! I attempted to have the affidavit stricken on hearsay, he denied that. Although there are tons of cases that set precedent, I am going to write him and ask him why he denied that. I tried to strike the Bill of Sale without including the attachments, their attorney handed a computer generated "certification" from HSBC that they did purchase this debt but the judge disallowed it. The judge told me I wasn't allowed to request discovery in small claims court although the law states differently, but I did not argue. I said Even if this debt were mine, I have a right to see all of the statements so I could affirm or deny every charge, interest charge, fee charged, credits... to determine the amount the are requesting is accurate. That is all he needed to hear...he then asked me if I was done but I kept on going for awhile. I was too nervous to get to your list but I could tell that i had already either won or lost. The lawyer could only say he (the original attorney couldn't make it) believes the debt is mine. The judge said, "I am sory but I don't have enough information to grant you judgement." Woo hoo! Thanks for your help. The lawyer congratulated me and said I did a great job and that all consumers should stand up for their rights. He admitted Portfolio Recovery Associates never buy enough evidence to prove their case in court, it isn't cost effective to do so. He also admitted that if I filled out the identity theft affidavit, it was a way for them to get their money back for the purchase of the debt. Screw them! If I hadn't shown up they would have moved for summary judgement against me and in 30 days started filing liens on my stuff. These attorneys are very friendly monsters. Thanks again.


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

filmbob,

That's great news! The fact that you won is sufficient. The reason that the judge would not allow discovery in the court room is that discovery has to take place before you get to court. There is a procedure for that, but it doesn't matter now...you won! I am very happy for you. Another person followed what I wrote in my article and found that it is true. You don't have to be hoodwinked and swindled by these bottom-feeders. You have rights, and now that you know them, let others know the same thing you found out...that you can beat credit card debt collectors. You are living proof.

Congratulations for hanging in there and proving what I said would happen if you followed what my article outlined. And the long battle is over. Go enjoy life.


filmbob 4 years ago

Thanks again! I think he denied the motion to strike on hearsay was because the Plaintiff had no witnesses and the the person who I subpoenaed did not show up. Had he showed up, in court, I would have had to establish he had no personal knowledge, without him there, what I was saying did not matter. Also, he told the judge the info for the case was faxed to him that morning. When I motioned to strike the Bill of Sale for not being complete, since it had no attachments that linked it to the debt in question to myself, suddenly a document appeared that was cerified by the original creditor that they purchased this debt on this debt. It was a form letter with my name, the account number, the name of the original creditor, and a signature of an "authorized" agent...ALL IN BLUE INK! The lawyer filled it out before the rial. The judge did not allow the exhibit since I had never seen it and it wasn't attached to the original affidavit. They will try anything and stop at nothing to remove us from our money. It was also sad to see how chummy the judge was with the lawyer. I guess that is why it is better to have an attorney if you can afford one.


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

Yes, if you can afford an attorney to represent you at every level, it is wise to do so. If you can't at the initial level, at least follow the advice in my article and be wary of saying too much in court. As the saying goes, the more you say, the more they have to hang you with. The judge was correct in denying the lawyer for the plaintiff to introduce "undiscovered" material in court. Discovery is a phase that takes place before the court convenes, not during it. Just as there were things that you could not bring up, likewise, that lawyer could not now introduce his "secret weapon." Law is tricky, and I still advise people to try to get a lawyer when going to court. Not everyone is cut out to argue a case without having a good amount of time spent learning about law. Court is no place to rehearse, and I always cringe when I read cases where the defendant has elected to act as his own legal counsel. Legal, but often unwise. This is why I spelled out so much in my article. If that is followed, it should help the majority of cases to get their lawsuits and the collection agencies thrown out of court. But, in times when the bloodsuckers go for the appeal, it is absolutely time to call in the pros.

The judge would most likely appear to be chummy with the lawyer, because they can be the best of friends outside of court, and the judge still has to follow the rules when the court is in session. Another reason the judge might appear chummy is because, in spite of all the formality of the proceedings, that judge has probably seen that lawyer in his court a thousand times.

You did well. Congratulations again!


xeryp 4 years ago

Thanks for this wonderful article, it is so very helpful! I have a question, do the same things you mentioned apply to debts other than credit card companies?

I'm currently being threatened to be sued by a collector that bought a debt from a bank I used many years ago (not SOL protected, yet, unfortunately). Apparently there were overdraft fees and they ended up selling and charging off the account a few years ago. Now, since they had the wrong address, we're JUST NOW hearing from this debt collector, and we have entered NO contract with them.

Do the same rules apply to us? Can we argue, if they end up taking us to court, that we never entered an agreement with them? Thanks so much!


xeryp 4 years ago

Another question, is it at all possible that when I signed a contract with the bank, I also signed an agreement to owe this third party if I defaulted? Is that even possible and/or legal?


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

Dear Xeryp,

Debt collectors are all the same, they prey on your lack of knowledge of your legal rights. The bank undoubtedly charged off your debt long ago, but not before kiting your overdraft charges to make a profit if you paid them. That's how banks make money out of thin air - overdraft fees. They make more by the pyramid schemes that follow. So, my best assumption is that, no, you did not sign a contract with this other party. They most likely fall under the same legal framework as all other collection companies, that is, they bought a debt that you owed to someone else, and they have no more right to it than the man in the moon.

Follow the procedures I outlined in my article, and keep us posted. I'd like to know how you make out.


J1J4T 4 years ago

Help! I was recently served papers to report to a pretrial. The paperwork says I am being taken to court by CACH LLC whom obtained my debt from my "original creditor" Bank of America/FIA Card services who I might add was NOT my original creditor. My original creditor was a different credit card company I got back in 2002 when I graduated High School. I guess they either were bought out/aquisitioned/transferred or what have you to BOA. With my papers they actually provided a document signed by someone who had "personal knowledge of the manner and method by which FIA card services maintains its normal book and records and is duly authorized to make this affidavit." It then goes on to state what my account numbers were, what my balance was, what dates my last payments were made etc. One of the items says that, "The original contract in the matter may not be available, or no longer accessible to Affiant." Right there they are basically admitting they don't have a copy of the original contract and makes me wonder why on earth CACH would bother taking me to court because if I ask for the contract, they won't be able to produce it. With that affidavit of sale between FIA Card Serv and CACH was a few previous bills and payments that BOA/FIA sent me. This by no means is my entire payment history/charge history because I have had this card since 2002! It only covers about a year between 2009-2010.

The couple of questions I have are:

1. By simply asking for the original signed contract and CACH not being able to provide it can I have the entire case dropped?

2. By not being provided my ENTIRE payment history by CACH and the total amount owed not being validated can I have the case dropped?

3. You mentioned previously in response to another question that I have no contract with the debt buyer. BOA charged off my debt and CACH bought my bad debt and have no right to my money. Is that correct? How do I prove this? If I say I have no contract with CACH, can't they just say I had a contract with "my original creditor" and they took that contract over? Is that what they do when they buy bad debt? Or are they just basically investing in it and have no right to my money but to try and trick me into paying them?

4. They keep referring to my original creditor as BOA which is not true. If I have a copy of a very old bill from my ORIGINAL creditor (which I do), can I have the case dropped based on wrongfully filed papers who claim my original credit is BOA or since my orignal creditor sold to BOA some time ago is it all considered the same anyway?

5. I plan to request "validation of debt" but I think you call it a "request for production". Is that the same thing? Should I do this before pretrial or at pretrial?

6. Some interesting information I came across while investigating all of this is that FIA card services was taken to court for wrongfully charging delenquent accounts interest retroactively the cardholders won and are being paid back! Based on these cases, can I request the case be dropped since FIA card services has already been taken to court for wrongfully charging cardholders so how can CACH request payment for an amount that may be incorrect in the first place?

7. Lastly, and I hope it doesn't come to this but god forbid I lose and have to pay these people something which it doesn't sound like I have to, can I negotiate a lower price? I know they buy my debt for pennies on the dollar. Can I ask how much they paid for my debt and pay them that? Or, once I go all the way to trial if it gets that far, am I responsible for the entire amount?

Thank you in advance for your help! I'd really like to know the answer to at lease the validation letter ASAP because my pre-trail date is Nov 19th and I'm not sure if I HAVE to request the info before or after and if I have the option, which is best? Thanks again!!


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

Dear J1J4T,

Thanks for writing. First, read my article, because it sounds to me like all you read were the questions and answers that have been posted here below the article. My article covers every question you posted, so please read and study what I have written, because it has saved a lot of people some major heartache, and for this reason, it is a very important article.

First of all, when you read my article, you should realize that your original creditor was the only entity with whom you signed any contract. Unless you enter into a contract with someone else, there is no other contract. The original contract is the one in question, it is the only one that you owed money to, and that original creditor decided to "throw the debt away" by not taking you to task when they could. Remember, too, that this original creditor has a limited amount of time in which to do this. There are statutes of limitation that vary from state to state, so you need to check on this, but from the time you made your last payment to your original creditor, they have three to four years in which to bring suit. If they do not, the debt is no longer pursuable because of statute of limitations.

You do have certain time constraints that go into play the minute you are notified that you are being taken to court. I talk about all of these in my article, but basically, once you have been served, either by registered mail or by sheriff, then you have a time limit stated in the papers that have been served on you. That time limit has to be followed. You must file with the court and tell them that you are going to appear. That is important. It lets the jerks who are pursuing you know that they "have a live one," that this person is not their usual "easy lay." You're not going down without a fight, and you might just know your rights. Now, they are going to have second thoughts about taking you to court. Still, they usually won't give up too easy, and most of them will call your bluff and make you show up. If you do everything my article tells you to, they usually will not show up, and they lose by default.

Do not call or write to these debt collectors. Only do what I said to do in my article, which is to file your statement with the court that you intend to show up for the trial, and make sure you do this within the time constraints given in the time limits that are stated in the papers with which you have been served. Those papers will tell you how much time you have in which to respond, and by all means, respond to the court in time. Do everything that set of papers tells you.

Read my article. I know that I have said this several times already, but I cannot emphasize this enough, because everything you need to do is already written in that article, and to re-write all of those instructions here in my response to you would be too time-consuming. Read my article, then, if you have more questions, fire away. I'll do my best to help you. Any discovery requests have to be made in a timely fashion before the trial, so any demands that you want to make on the collection company need to be made in the right time frame.

Above all, do not worry, and don't be fooled by all of their bluff. It's a bunch of baloney, and they know it. They are just hoping that you don't know your rights, and they can just roll right over you. Read my article and let me know if any of it is unclear. Keep the faith. You will win. Everyone who has read my article and followed the advice has won their cases. You should be no exception.

Keep me posted. I do care.

Brian


J1J4T 4 years ago

Thank you for your prompt response. I did read the article. I apoligize if it seems I did not. I am not very knowledgeable when it comes to this stuff. I had all of those questions because I was not sure if your article pertained to me exactly because it is not a trial yet and only a pretrial. My paperwork did not give me any instructions or time frames in which I needed to respond. It basically just said I need to show up and have documents with me (and so does the plantiff) to prove our case to see if the case even needs to go to trial. So do I/should I still send the request for production if this is just a pre-trail or just wait until I get there? Also, do I call it a request for production or a request for debt validation? Are they one in the same (it looks like it)? I was served on 10/24 so either way, if the 30 day rule applies for pretrials, I am within 30 days if I wait until the pretrial date on Nov 19th. I just don't want to request something that would only be applicable in a real trial and look foolish. Thanks again for your prompt answers and for writing this article. I feel a little better and hopeful that I can beat this. I will definitely keep you posted.


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

You said that you are not very knowledgeable about this stuff, and that is actually where all of us who have been through this found ourselves at one time or another. That is what collection companies bank on, us not knowing our rights, and they take advantage of that everyday. They have practiced law, they have practiced getting people to unwittingly enter contracts with them, and they are heartless and rotten to the core. So, have no mercy on them, and do not talk or bargain with them. They have no right to ask you to bargain, or settle for less debt, because any debt that they get you to agree to is money they were never owed. You never entered into any contracts with these collection companies, they bought a debt that was not theirs, and they knew that the debt was uncollectable as it stood. They have no rights to that old debt unless you give it to them. Will they try to trick you into entering a contract with them? Absolutely.

One tactic is to get you on the stand under oath and wave a contract at you and ask you, "Are you stating that you never signed this contract?" And with that one, you have to say that you do not recognize that contract, that you need to see the original contract that you signed, and that this is not it. Period. Stick to that line and do not add to it. Stay on tack, no back and forth that allows them to cut and paste your words. Answer the way I just said, then when they start to badger you to change your line, simply say "Asked and answered...move on!" If they persist, turn to the judge and ask the judge to call them on their actions. They cannot keep badgering when the question has been answered. Keep in mind that they may not even show up, so much of this may never take place, but just being prepared is wise. They are required to produce the original signed contract...which they cannot do. And, yes, you can send a letter to them demanding that they produce this contract for court. You also need to demand that they produce everything I have stated in my article, such as every charge you ever made on that card, every amount you charged on that card, the dates of those transactions, and what the purchases were. There is so much that you want to demand they produce. I outline that in my article. Make these demands in writing and send a copy of this letter to the court the same day you mail it to the collection company.

Do not wait until you appear in court to make these demands. Make them by certified mail to the collection company. It may be a lengthy letter, but keep it as short and to the point as possible. Don't get into any denials or defenses in any letter...you could easily say the wrong thing, and it would be used against you. If you have the money to hire an inexpensive lawyer, by all means do so. But, if you cannot afford one, you can still win. Just follow the actions I laid out in my article.

Remember, the burden of proof lies on the collection company, and there is no way that they can say you entered into a contract with them. You have more on your side than they have on theirs, unless you goof and try to enter into any settlement outside of court because you fear them. They need to fear what you can do, because the law is in favor of you.


J1J4T 4 years ago

I'm little confused, and I know this is going to make me look silly, with the request for production. I am not being taken to court by my credit card company. I am being taken to court by CACH, the debt buyer and Plaintiff per my paperwork. So with your form, I should put CACH up top as the plaintiff then put my credit card company in the body when asking for the specific documents correct? Or should I put CACH in the body as well? Shouldn't I also request a copy of the contract, which we know there isn't one, between myself and CACH that says I owe THEM money? If I don't request this up front, how can I use the fact that there is no contract between us in court if I didn't ask for proof of one before hand? Like in one of the previous comments from someone who won, you stated the judge denied the discovery from the Plaintiff because "discovery has to take place before you get to court." If I cite "Failure of Consideration" or "Repudiation", couldn't the judge deny those because I didn't ask for a copy of the contract between myself and CACH before hand? Thank you so much for your detailed responses. This is really helping me so much!


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

I know you are not being taken to court by your original credit card company. They gave up on the debt a long time ago. You are being pursued by a debt collection agency, no matter what name they give themselves, and as such, they are not owed the original debt. Only your original credit card company had a contract with you, and only they could have pursued this debt. Now, the collection company is required to produce that original, signed contract between you and that original credit card company, among other things, such as documentation showing when that contract was re-written to make this collection company the company you owe the debt to, and equally, when you signed this "new" and revised contract. Such a new contract does not exist. That is what you are seeking in the request for production. Without that original signed contract, the collection company cannot proceed. To answer your question, yes, the name of the plaintiff will be the collection company. Your original credit card company is not coming after you...the collection company is. This court battle is not between you and the original credit card company, because they gave up this debt long ago. This fight is between you and the collection company. They are trying to get you to say you owe this money to them in any way they can make it happen, which is why you have to watch what you say and what you do. Do not admit the debt. If asked in court, simply say that you need to see the contract, because you do not recall it. Stick to this answer without elaboration. You do not recall this contract, therefore, you need verification and proof. That is the line for court. As for the collection company, you need to request production of the appropriate documents as outlined in my article.

Yes, discovery is done before you get into court, not during the court proceedings. If the collection company has been served with the proper requests, and they fail to produce the required documents in a timely manner, that is completely in your favor.


J1J4T 4 years ago

So just to confirm, in my request for production, I am not referencing my credit card company at all. I am asking for "executed contract in...." who's name? CACH LLC or my credit card company? If I'm asking for the executed contract in Bank if America's name, what part of the request for production is asking for the "contract" between myself and CACH? Is it item #3 when asking for the modifications? So sorry for all the questions. I just don't want to screw this up! I am so grateful for all your help!!


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

Here's what I wrote that is relevant to what you are asking:

#3 Defendant demands for proof of Plaintiff’s ownership of alleged debt.

The law is very clear that the plaintiff has a legal duty to attach any necessary documentation to everything he has filed in court, including in the original certified letter that was sent to you. Did you see any documentation in that letter? No. Why? Because the plaintiff has none. He knows that, the court knows that, and now, you know that, too. Legally, the plaintiff lacks capacity to sue. At this point, you may read the following statement to the court:

“The plaintiff is required, by law, to trace in his statement of claim the derivation of his cause of action from his assignor so that the defendant may challenge the plaintiff’s claim that he is the present owner of the cause of action.”

Study this statement until you understand what it means. Basically, it means that the plaintiff is required to show how and why the plaintiff owns your debt so that you can offer a proper defense. If the plaintiff cannot do this, the plaintiff has no case. I would send this very statement to the court and copy it to the plaintiff, in this case, the collection company. You are the defendant, and you have a right to challenge the claim of the plaintiff that they have a right to sue you for this debt. They have to prove ownership, so you are demanding that they show this, and you can rock their boat by putting this demand before the court during discovery. You must also be ready to make this demand in court...if it gets that far. Trust me, in most cases, once these bottom feeders realize that you are going to fight back, and then they see what trouble you are going to make for them, they disappear. Some with a whimper, some with a fight, as in filing an appeal to the next higher level of court (at which point you do need a lawyer - you still win, but you just need a lawyer to make it happen).

To answer your question, you want to say this: I am requesting plaintiff (then name the collection company) produce documentation for all alleged debts. You can add, “Whereas no relationship exists between Plaintiff and Defendant, and whereas Defendant never signed a contract or agreement with Plaintiff, Defendant cites Lack of Privity.

Defendant demands proof to the contrary be furnished forthwith and immediately. Furthermore, defendant demands for proof of Plaintiff’s ownership of alleged debt."

This should get the ball rolling.


J1J4T 4 years ago

So the affidavit of sale between FIA Card services and CACH, which they DID provide to me, is not proof they own my debt?


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

No, it's proof of their idiocy. They do not have a contract with you. You have not signed anything with them that says that they are going to provide the same services that your original credit card company provided. They have offered no proof that they are a credit card company that is able to provide the same services as your original credit card company. Why would you now have a contract with them? Did you enter into an agreement with them that says they will provide credit card services to you for a monthly fee? Did your original credit card company send you a new contract that said that they were now going to transfer their abilities in providing credit card service to this collection company? No. You were never given any notice from your original credit card company that they were going to modify your original contract, that they were going to sell their responsibilities to you the customer to some other company to fulfill, nor did you sign anything giving them this permission. This is what your collection company has to prove, this is what they have to show...a signed contract between you and them, a signed contract that was initiated by your original credit card company that says you agreed to let your original credit card company out of their obligation to serve you as the credit card company and allow the collection company to now serve you as your credit card company. The collection company would have to show the court that they have the capacity to act as a credit card company, and that they could thereby service your credit card needs in order to fulfill that duty.

The collection company knows exactly what this means when you demand to see the original contract that you signed with the original credit card company. To quote my article:

#8 Plaintiff's complaint violates the Statute of Frauds

Plaintiff claims to have a contract with you, thus, Plaintiff has to produce it, because such a contract falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the complaint was not in writing and signed by Defendant or by some other person authorized by Defendant and who was to answer for the debt, default, or miscarriage of another person. In order for the collection company to state that it had an agreement with you, it has to show how it was going to benefit you. For example, was the collection company going to issue you credit like a credit card company? Highly unlikely. Therefore, to say that it had a contract with you is fraudulent, because the collection company cannot provide the same services as the credit card company did. It would be like the credit card company selling your contract to another company that required you to sell your house to them at the end of one year. This new requirement would not be something that you agreed to in the original contract, and since there was no “meeting of the minds,” you did not come to any agreement with the collection company. Here, then, you simply cite statute of frauds. Research your state’s case law to see how your state stands on this point. Nonetheless, because the collection company cannot provide the same services as the original credit card company, it is breach of contract, thus, we invoke “statute of frauds.”


J1J4T 4 years ago

Thanks so much for all your information and help. I'll let you know how it goes!


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

Keep me posted. I do care. And don't forget to share this information with others. Maybe the day will come when enough people will know their rights, and these collection company parasites will no longer have the ability to make life miserable for people who just need a break.


J1J4T 4 years ago

Another quick question: Say I lose god forbid for some reason; can I then negotiate payment arrangements or negotiate a lower payoff since they bought the debt for pennies on the dollar or have I lost that chance and have been found guilty/responsible for the full amount?


J1J4T 4 years ago

I've been reading a lot about this CACH LLC and how people have requested that they prove/validate the debt and even when they can't, the judges are still ruling in favor of CACH LLC and signing off and approving judgements! How/Why would they/could they do that? Now i'm a little freaked out. This CACH LLC is one of the worst people to be taken to court by it seems : /


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

First of all, you don't want to lose. If they win, they have you under a contract to pay them whatever they are seeking, and they will do everything they have to in order to collect. So...do not negotiate or contact them in any way prior to court other than to serve them notice that you intend to fight them in court if they dare to appear. Don't let them scare you into losing. The law is on your side. If you do not feel up to handling this, then I would suggest seeking free legal counsel, because it does exist. You can also find a lawyer who will possibly take your case for five or six-hundred dollars, and you may be able to make payment arrangements with them so that you can pay something each month until the bill is paid. But, however CACH is winning, it would seem to me that they are winning because the people they are taking to court are not following the information that I wrote in my article. Obviously they are not following it, because my article was only published this year. So, I don't know the particulars of their cases, but I would bet they made mistakes that even I would have caught.

So, my best advice is for you to seek legal counsel, try to find someone who offers free legal services, and if you can't, then try to find someone who does so for a small fee. You have already filed with the court that you are going to appear in court. You may have time to ask for a delay while you seek legal counsel, but if not, then get a lawyer. It is worth the money that you will have to scrape together, because any lawyer worth his or her credentials can get rid of these jerks permanently.

One more thing, asking CACH to validate the debt is not the only defense. You have to be ready on ALL fronts, not just one. Re-read my article, then re-read it again...until all of it starts to become common knowledge to you, and you will see that there are a number of defenses against these people. Nonetheless, if you are not confident, get a lawyer. You only get one shot. This is not a rehearsal. Do it completely correct. You have a right to win, and they have a chance to screw you out of that right by relying on your lack of expertise, knowledge and confidence. I think you would do well to get legal counsel. The investment will pay great dividends.


J1J4T 4 years ago

I talked to a couple lawyers in town and they have both basically said that I could TRY to fight based on everything you have stated in your article but that it would probably just be best to try and come to a settlement. They have also said that with the amount I am fighting, with their costs, it's not worth it to hire a lawyer and that I won't find anyone who would even be willing to go to court with me for such a small amount. Now I feel conflicted. Do I fight and risk owing more if I lose or do I just try to settle?! This is so frustrating!


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

I think, personally, that these lawyers gave you bad advice. Keep looking until you find a lawyer who would handle your case for around $500 and who also feels that your case is something that can be won. Are there lawyers who would tell you what these two just did? Yes. Does that mean that they are right? No, not in my opinion. It sounds to me like they are lazy, do not have experience in this type of case, are shirking their responsibility to give you a thorough answer based in experience and right knowledge, or are ones who have argued for credit card collection agencies before. All I know is, the laws that have been written that were the basis for the article I wrote, these laws were not written for nothing. They have won more than a few people freedom from collection companies. If you doubt this, then take a dive, let the collection company win, call them and give them everything they want, and when you do, you will be signing a contract that they will then have the legal right to pursue. Before that, they had nothing, after that, they have your bank account and paycheck until paid in full.

Me, personally, I would fight and win, I know, because that is exactly what I did.


J1J4T 4 years ago

I think they did too. I've talked to three so far and they've all pretty much said the same thing. I have decided to just wing this on my own and see what happens (don't think I'll find anyone in my area since we are a small town and everyone overcharges for everything and they all seem to think I should just settle). Worst case I lose and I end up where I would have been had I just given up in the beinging. The amount will just be different after they add everything in which doesn't really matter to me because I don't have the money to settle anyway. I've really got no other choice but to fight.


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

Usually, those against whom these collection companies bring charges do not have the money, either, so it is a painful situation brought on by the collection companies that just worsens the sorrow in this country. They are blood-suckers, and I hope more people wise up to their rights and fight them. Do your homework, and do it well. Read my article, re-read it, and keep reading it, because that contains the laws that you need to know.

I know how you feel going into court without a proper lawyer to represent you, but fighting with even a little bit of knowledge is better than laying down and letting these blood-suckers roll over you unimpeded. I once represented myself against a car dealer. He had a lawyer, I had myself. I went to the library and researched every law that pertained to my defense. I wrote out a seven-page, typewritten argument on my behalf. High-paid lawyer against an ordinary citizen armed with the truth. Guess who won? Me!

Don't go into court with any arrogant attitudes. Just use a simple, humble and educated approach. Know your argument, research it well (because this is not a dress-rehearsal), and give it your best shot. They may not even show up, but, if they do, do not admit to anything. Make them prove it all. When asked if you signed this contract, and they hold up "whatever," tell them you do not recall, you need to see the actual contract. Stick to that line. They will try to trip you up by re-wording. If they keep badgering you, simply state that they have already asked the question, and you have already answered it. If they persist, turn to the judge and say, "Your Honor, this is badgering." He should then put a stop to it and tell them to move on with other questions, if they have any. Some judges will insert themselves, others won't, so you have to be aware that badgering is not permitted.

Don't give up, put up a fight instead. Learn your rights, memorize as much as you can, have your notes ready to refer to, make them easy to read and follow, rehearse what you are going to say, anticipate their line of questioning, maybe even have a friend rehearse with you by playing their role and firing obnoxious questions at you. Whatever you do, don't wait until the court date to start preparing. You can win, so prepare to do so.

Good luck to you, and keep me posted.


jaypeez 4 years ago

Great information. I would like to thank you for putting up this page. I am going to use this information to personally help people I know that are going through this. Fight these collectors!!!


jaypeez 4 years ago

When was this article written?


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

Dear Jaypeez,

Thanks for your kind comments. To answer your question, I wrote this article around March of 2012. I like your dedication to helping others by spreading the message contained in my article. Best wishes to you.

Brian


jaypeez 4 years ago

Thank you. I came across some interesting information today that I thought I would share and get your opinion on. So I live in california and I am helping a friend who was served with a summons and complaint. So I called the court to verify that she had a case in that courthouse which she did, and I asked how do you file an answer? the lady at the court house said that she dosnt need to file an answer because it is small claims court and that she just had to show up. So I was thrown off by this. I then contacted a consumer attorney who specializes in debt lawsuits and he said that she can't even get sued over a credit card in small claims that they had to do it in superior court? At this point I was just lost. Did this collection agency just file in small claims so that they can use the paper work to scare my friend? And just hope that it would scare her into paying. This has to be a violation of some sort. The attorney said just show up and tell the judge. They would know what your talking about. What's your take on this?


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

From what I understand, if the collection company chooses to sue you in small claims court, it is definitely a different ball game than the higher courts. Nonetheless, follow the order of setting up your defenses. Treat it as if you were going through a higher court. File the papers and make the same motions, and keep to the time limits. The worst that can happen would be for the court to tell you that you do not need some of the paperwork that you filed. But, the fact that you file these papers on time and get copies of your intentions to the collection company, the sooner the collection company gets the idea that you are going to put up a fight, and not just any fight, but a legal challenge that they know they cannot defend against. If it were me, I would be treating it as if it were not so simple as the court says. Better to be over-prepared than under-prepared.

The reason they may be going through the small claims court in the first place may be in hopes that you won't show up, which then gives then a claim by default. Then they go after you with everything they can muster. Sending them copies of anything you send to the court may scare them enough to end the charade. No matter what, being over-prepared is not a waste of time.

Good luck to you. Keep me posted.


jaypeez 4 years ago

Thanks. Just wanted to let you know that I got in contact with an attorney who specializes in debt defense. I told him the senario and he laphed. He said you can't get sued in small claims court by a THIRD PARTY AGENCY. All you have to do is fill out form SC 105 and reference CCP 116.420. The judge will know what to do from there. This is just a scare tactic they probably won't even show up to court but to make sure we will be there and we have filed the sc 105 for I will let you guys know how it turns out. By the way the filing collection agency is WWCM. When you call they answer Triad something so beware.


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

Sounds like you got good advice. Follow through, and show up in court. Hopefully, this will be the end of them, but don't be surprised if they file an appeal. These are tricks that some of them go through just to harass people. If they file an appeal, you will need an attorney for sure, but if they stop after this small claims court appearance, you may be done with them forever.

Good luck to you.


Krs1101 4 years ago

I have a question. Earlier this year I was served a summons to court in a different county on a debt from a law firm representing a credit card company. So I filed a motion to vacate the judgement due to the papers being served to a different address and I won. A few months later I get served at my legal address about the same debt but this time they tried using a trial rule 56. So I did some research and learned how to answer it and I filed my motions with the court. I show up and it's a different attorney than before and he's representing the law firm on about a dozen similar cases. So I go over my paper I wrote and filed. And point out how they havnt proved this debt was mine and nothin they filed proved otherwise. I get a letter the following week stating the judge placed the judgement on hold pending they produce the original contract which leads to my question. How long do they have to produce the contract? The judge ruled back in mid August and its almost 90 days since. I called the magistrate abbots office about it today and she told me to file what ever I wanted to file. I especially love how they tried to trick me with the trial rule 56, which states that I basically had to prove to the court that there was a reason to proceed to trial. Any help would be appreciated.


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

Dear Krs1101,

Sounds like you have been doing your homework. Good for you! Basically, it goes back to the collection company having to prove that they own your debt, that you originally signed a contract with them, and they can never prove this. They know that, so they resort to any and all forms of trickery. They also like to harass you in hopes that that will wear you down, and one form of harassment is to put it on the court docket, then have it postponed. Depending on what state you live in and what court this is in, there are time limits, so you need to check the court clerk's office to see what they can tell you. I would try to get a lawyer who gives free consultations to guide you on this question, if at all possible. If you cannot get a free consultation, then by all means start researching the time limits in your state. You may be able to get them put out of action by time limits expiring. They are usually good at knowing this and re-activating your case just in time, but it still pays to find out what those time limits are. They don't have forever to produce the contract, and they know that they cannot produce it anyway, so at some point and time, they need to throw in the towel. They may want to keep harassing you for a while, but the ball is in your court. They are just hoping that they can keep scheduling until you miss a a court date, but there should be a way to catch them in their own game.

Good luck to you. You deserve to win and should.

Brian


Krs1101 4 years ago

Yeah the original debt was sold to some JDB then to midland credit then midland who sends it to some law office a few hours north of where I live. Yeah I had an affidavit stricken on hearsay and a list of charges with no account number stricken as well. The lawyers face was priceless. Yes I know without the original contract they have no case. Open an shut.


Hanavee profile image

Hanavee 4 years ago from Pennsylvania Author

It is sad how many Americans each year are taken by these collection companies, but worse is knowing that all of these people could have avoided the pitfalls if only they knew their rights. We have to spread the word.


Krs1101 4 years ago

I agree. I tell all my friends and offer advice when I can. People like that should be arrested.


zoozoo9 3 years ago

Hi Thank you for the great info in this matter. I did not have time to get the Request For Production out do to illness. Can I still use this. What part do I need to not say if I have not sent the Request For Production. It looks Like I can still use it all because this is not the only part of the defence.

Thank you again


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Zoozoo9,

I would still send the Request for Production, unless you think it will not get there before your court date. If it will get there in time enough for them to read it, it lets them know that you are not going to be an easy victory for them. Reading that may just make them fold up and throw in the towel. So, if they will receive it before your court date, send it anyway. Everything helps.

Meanwhile, have your papers ready for court. Read and re-read everything in my article and be ready to read the lines, or recite them if necessary, to the judge at the appropriate time. With any luck, the collection company won't show up, but if they do, follow my article and be ready for them. There is no need for you to lose if this is anything like I think it is.

As for what part not to say, really, by getting familiar with my article and all of its points, you should be able to tell when to say what is needed...if it gets that far. If they receive your request for production in time, they may not show up. But, if they do show up, especially follow the points outlined in my article, because they cover every weakness in the collection company's suit. Each and every one of these points is important, although nearly any single one should win a case like this. Together, all of these points make an insurmountable defense, so be ready to use all of them.

Good luck to you. Let me know how it turns out for you.

Brian


filmbob 3 years ago

Just wanted to say I won my case against Portfolio Recovery Associates. When you go to court, make certain you try to subpoena the person who signed the affidavit and his complete work history. When you depose a Judgement Action, the Plaintiff may be required in your state to present witnesses. Have questions ready for him like how long they worked for the original creditor? How do they claim they have intimate knowledge of the transactions that led to the alleged debt? As them to show you a complete accounting of how they arrived at the final amount. The can't. They never invest in all of the "media" to support their case. The affiant never showed up and the Plaintiff's attorney had no witness to the judge's dismay. When this happens, you can't win by saying they have no personal knowledge because they are not their to convince the judge. You can win because they do not have enough information. They are not allowed to introduce any evidence at trial in small claims court in Maryland, what they attached to the affidavit is what they have. A handful of invoices are not enough for the judge to conclude that the amount they are requesting is accurate and you have a right to review every claimed charge, interest charge, late fee and to determine whether you agree with it or not. You have to say this. Once you do in court, the judge will have heard what he needs to hear. The Plaintiff's attorney will say he believes this your debt. This is not enough. YOu need three things, Personal Knowledge (you can prove they do not have this if they show up and you ask the right questions), belief (they have this or they would not have invested in the debt), and information (which they do not have enough of). Be humble but look the judge in the eye and say "Even if this were my debt, I have a right to review each charge to determine which I deny or agree with in determining the amount of which I owe." This tells the judge that you know you have rights, you stated you have rights (what a lawyer will do and a judge can not do for you but hopes you do) and you understand that that it is a court of law not justice. Even if you owe the money, the judge can not assume anything, the information has to be there for him to grant the Plaintiff a judgement. He can not do this if they can not prove the amount is correct. That is how I ultimately won my case.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Filmbob,

That's great news! Congratulations on winning your case. Feels good, doesn't it? So far, everybody here has won their cases, and I love it. Think of how many times a day people go to court and lose, all because they didn't know their rights. I hope my article just keeps getting spread around out there so more and more people get set free from these bottom feeders.

My hat's off to you for your perseverance. You did your homework, and they were definitely blindsided by what you had lying in wait for them. Thanks for the extra tips, too. It all helps.

Brian


benedictfc 3 years ago

Brian,

good to see more and more people get it and successfully use the strategies you have outlined to win their cases.

I have a follow up question to the ones I posted earlier.

This one is regarding fixing one's credit report and profile.

My understanding is that an original debt is removed from the report 7 years after "non-payment" status started. That seems cut and dry.

However, how does one rectify a situation where debt collection agencies (DCAs) unilaterally keep updating alleged debt status into perpetuity? How would one get these negative claims removed from ones report? Furthermore, how can they legitimately report a debt to a Credit Reporting Agency (CRA) when you never contracted with the DCA in the first place?

When filing a dispute with one of the big three credit reporting agencies, they have asked for proof that the alleged debt is not valid. How can one provide that proof unless a debt collection agency is forced to show there is no valid claim against you? It feels like a catch 22. You have mentioned not to contact a DCA unless they take you to court. However, unless one approaches these DCA's proactively (independent of them taking you to court) and force their hand by demanding proof of claim for their allegations (which, when they don't provide it to you can be used as evidence to supply the CRAs to remove the charge from their records), I don't know how to obtain the necessary information for the CRA's to update their records with.

I hope you understand what I'm trying to say and I would like your comments on it. Thanks!


benedictfc 3 years ago

Second question:

when a credit card contract states that debt is owed to "issuer or assignee", what does "assignee" mean and what is the legal enforceability these "assigned" parties have to collect?

You mention above that due to the fact that no contract was signed between you and the collection agency their claim is null and void; however, if one agrees to the original contract and it includes an "issuer or assignee" clause, would the court recognize the debt as validly carried over as long as there is a valid contract between the original issuer and the assignee?

I understand that with use of proper Request for Production the validity of the assignee issue may be a moot point but I would like to be clearer on it.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

To answer your first question, acting "proactively" is definitely difficult, and I would advise finding a lawyer who specializes in this to guide you through the laws in your state. It may be possible to simply send a letter to the big three credit reporting agencies and tell them that you never signed any agreements with these debt collection companies, and that, citing the appropriate laws, they do not own your debt for the above mentioned reasons. You might even outline the laws for them regarding the reasons the original creditor was the only one with a contract between you and them, not the collection companies. It is a difficult path, but it is worth a shot. Other than that, I would find a lawyer who specializes in these things and see if the lawyer could put a professional spin on the effort. It is a difficult job, because they are undoubtedly listing the original creditor, not themselves. It really is very convoluted. That is why I suggest getting a lawyer who specializes in this, because it is a tough one.

Being proactive could, in some ways, be choosing a battle that was best left undisturbed. I had a lawyer once say to me, "Choose your battles carefully." Sage advice. Sometimes, the status quo is better than the aftermath of a battle. Nonetheless, it's a free country, so pick the scenario that works best for you.

Regarding your second question, in order for your original creditor to "assign" anything, you would have had to have been notified in writing that they intended to assign your account to another creditor, someone who could render the same service you were receiving from them. A collection company cannot issue you a credit card, and they cannot lend you money. Even if they could, they would have to have a signed contract with you stating that you accept them as the new "assignee."

Hope this has been of some help to you.

Brian


benedictfc 3 years ago

Thanks Brian,

yes. this is helpful.

As follow up to your response to my second question, it appears that it is not good enough for just the "assignee" to notify me/someone of sale/assignment; this also has to be done prior to assignment by the original creditor, whether for sale off or commissionable representation. Is this correct? If the OC does not notify, what are they in violation of?

third question: when an OC executes a charge off and takes the tax credit, which year does that tax credit apply to? Once they charge off the account, can they keep reselling the old debt, or does it have to be sold off prior to the charge off?

thanks.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

The assignee can be anyone in a chain of entities that purchase these things. But, and this is a big "but," technically, the assignee has to be a company that can still offer the same benefits that the original creditor offered. For example, if the original entity was a credit card company, then that credit card company can assign the account to another credit card company, because that newly assigned credit card company can still loan your card money. Still, if your original credit card company assigns your account to a new credit card company, they have to notify you and allow you to terminate the relationship. Once you agree to allow the new credit card company to be your credit card company, they become the new assignee...and only once you have signed to that new agreement. No agreement without your approval, no contract without your signature...plain and simple.

I do not think that a collection company can ever claim that they are the legal assignee. They cannot provide the services of a credit card company. Paragraphs 5-8 in my article cover why this is. Re-read them, and you'll see what I am driving at.

The original creditor does not have to notify you that they have sold your old debt to a collection company, because they are not an assignee. Your original creditor has given up the debt, and they can no longer receive any payments toward that debt. They have to close that account, and they can never re-open it for collection, since they either received a credit from their insurance company, or a tax write-off. So, the collection company has purchased a bad debt and gone after it...scienti et volenti non fit injuria. Your original creditor is not in violation of any law by selling off the bad debt.

As for what year that tax credit applies to when an original creditor writes off the debt, I don't how that would be ascertained, and you would probably never be ever to find that out, since that is not information to which you would have rights to see. And your last question, the original creditor does not keep selling off the old debt. That debt is purchased and re-sold by each successive collection company. They buy and sell old debts all the time, trading them like currency. Scum business, huh?

Hope this answered your questions.

Brian


Judy 3 years ago

I am headed to pre trial next month, in answering the complaint I wrote " lack of knowledge or information sufficient to form a belief as to the truth of the allegations" and the debt collector suing me have not provided me with the original contract with the credit company. Now my question is ...is it to late to send the debt collector the request for production form?


StacyH 3 years ago

Thanks so much everyone for your comments. I have a question. I received a summons from a creditor and they sent me my a packet with all my statement and then my contract. the statements date back to 2005 yet the contract is dated in 2009 and on the contract it has @2010 copyright. Does this sound like they made it up after the fact?


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Judy,

To answer your question, "...is it too late to send the debt collector the request for production form?"...the answer is "yes and no." There is a legal time limit for discovery, and I do not know whether or not you are past that limit, but, if you are, then they do not have to comply with your request. However, sending it to them anyway makes them realize that you are not going to be a cake walk for them. It tends to shake them up and make them think that you might just know your rights, and that is something they do not want. My advice is, it doesn't hurt to send it. You have nothing to lose. What you have done so far sounds great. Let us know how things turn out for you, and if you have any questions, feel free to ask, and I 'll do my best to help.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear StacyH,

I've never heard of a collection company doing this. I assume that the contract that they sent you was a legal copy of the original contract that you signed with your original creditor? This would be a first for me, since I have never heard of a collection company having anyone's original contract, and that is what they have to have in order to have a case. The dates sound strange to me. It has to be a copy of the original contract that you signed. Furthermore, they have to show all of the dates you made purchases, what the items were that were purchased, the amounts you spent and all payments that you made to that account. You may want to find a lawyer who works for an affordable fee and see what the lawyer advises. If your original creditor has written off the debt, then I would fight the collection company with everything you have. However, if this is the original creditor coming after you, and not some other collection company, then, yes, you need legal assistance in handling the matter. Remember, if you have not made any payments to your original creditor for more than 3 or 4 years (it varies from state to state), there is a statute of limitations. Since I do not know if you are talking about the original creditor coming after you, or a collection company that has bought the debt, knowing which is which here makes a difference. Nonetheless, you may want to seek legal counsel.

Good luck to you.

Brian


Anne 3 years ago

My experience shows that this crap you are peddling is right on the money. I have been very successful as of late exposing these "junk debt buyers" as a matter of fact I have just uncovered a leading junk debt buyer filing in the court record affidavits of debt which are robosigned by not the affiant, but the notary public who just happens to be an employee of the junk debt buyer as well. The notary public signature is not the signature on file with the Commonwealth of Virginia's Secretary of State. These companies put out false, robosigned affidavits on a routine basis. An area Magistrate Judge actually gave this company a judgment without a legitimate bill of sale. Now he will look like a bigger fool than he already is when he finds out bogus documents were filed in his court Wonder if he will try to protect the Plaintiff's Attorney now.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Anne,

I'm not sure what you meant by "this crap you are peddling...", but I am going to assume you meant well by it, since I am not peddling anything. I don't make any money for helping those who have been helped by my article. I decided to allow your comments to be published, because I like what you showed about junk debt buyers buying large quantities of "debts" and then having the affidavits robo-signed. I feel that everyone who has been through this ordeal with these collection companies can use all the help they can get, and if your information helps them in any way, then I wanted it put out there for everyone to read. Thanks for sharing your information. I hope someone puts it to good use.

Brian


Will 3 years ago

Dear Brian, I am being sued in Maryland by Citibank NA, the suit alleges that the original creditor was citibank SD and the plaintiff is Citibank NA , citibank na "acquired" citibank SD in July of 2010. They filed their case as the original creditor, I filled out my intention to defend and a court date has been set for February. But the more I read your article, the more I think I should submit a motion for dismissal. Based on defense numbers 3 , 5 , 6 and 7. Is there any reason why those would not be applicable to a bank that bought the original creditor ?


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Will,

As you said, the original creditor was Citibank SD. Only Citibank SD (morally) has the right to sue for the debt owed them. Once they let it go, they either took a tax credit, or they took an insurance payout. They can no longer legally collect on this past debt. Along comes Citibank NA trying to collect on a debt owed to another company. Scienti et volenti non fit injuria - they can't claim that they were injured when they knew that they were buying a bad debt. Maybe they should sue Citibank SD for their injury.

You asked if sections 3, 5, 6 and 7 were applicable to your situation, and the answer is yes. Actually, all of the sections of my article are applicable. Your debt was with the original company, Citibank SD. Only Citibank SD owns the debt, unless you signed an agreement later that said you recognized Citibank NA as your new lender and agreed to allow them to operate fully in the capacity with which your original lender dealt with you. I doubt that there is any contract between you and Citibank NA. That is what they need to provide the court and you upon demand. ..among other things.

Research Citibank NA and Citibank SD and find out several things: How are they related? Why the name change? Were they sued, thus the name change? Were they forced by court order to divest and thus became a different company? Did they go out of business? I have no idea with doing a lot of research myself, but you can simply Google their names and see where they began, how long they have been in business, and what relationship they have with each other. All of this is important, because I would bet that they are not one and the same, which would mean that only the original lender had a right to the debt. Follow all of the sections of my article and make sure you file your papers in the prescribed time limits.

Also, check and see what the statute of limitations is for your state. It is either three or four years, after which the debt cannot be collected if no payments have been made during that time.

You can submit a motion for dismissal, and the reaction from the judge will vary based on the limits of power of that court, or the sheer stupidity of the judge who does not ever expect someone to stand up and know their rights. Most of these judges simply go through the routine that they know, and that is that the collection companies roll over the innocent defendants. I think a lot is going to depend on what relation Citibank NA has with you, and what relation they have with Citibank SD. Do some research on these two institutions, and let me know what you find out.

Most of all, fight the bastards. Make them work for every penny they get. If worse comes to worse, they get a judgement that they then have to fight to collect. And with any luck, they lose and you can send them packing forever. If this is what I think it is, then you have every right to beat them. Good luck to you. Let me know how it goes.

Brian


Michelle 3 years ago

Brian, I filed my answer to Midland Funding's suit two weeks ago and my pretrial hearing is in 3 days. As with others here, I have never had an account with their assignor. No debt appears on my credit reports, just their collection lawsuit. I just read your article this evening, and have typed up my request for production of documents. If I overnight it tomorrow (Wednesday) to get there on Thursday, am I at least covered for the Friday morning hearing? Or am I better off just handing to the court and the plaintiff on Friday morning?


Will 3 years ago

Brian Thanks for your quick reply , the papers filed with the court included a letter from the comptroller of currency adminstrator of national banks. Simply stating that they had "merged". I'm guessing that they are implying that this is proof that they own the debt, contract agreements etc. made by citibank sd .... however it looks like in Maryland and many other states, that unless you object, then the court will presume they have standing to sue etc. So I think a well written motion to dismiss based on lack of standing etc. could get the case dismissed ... for now :) They are a bunch of crooks they filed minimal info (theyt left out a lot of required supporting docs) and then the service company lied on their affadavit about handing me the papers, these are the same bastards that serve to your old address on purpose etc. etc. :)


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Michelle,

A request for production of documents has to filed, if I remember correctly, at least thirty days before the court date. But, it doesn't hurt to rattle their cage and send it to them anyway, because it lets them know that you are going to be playing hardball. It just adds to the reasons they might want to avoid you in court. Nonetheless, it depends on which court level the case is being heard in as to what time limits you have, and how some requests can be made. Nonetheless, they may not have the documents, but you should still be allowed to request they provide them while you are in court, and if they do not have them, then you should be able to move for dismissal on that basis. You cannot simply hand a request for the production of documents to the judge, as far as I know, but you most definitely should be able to demand their production from the plaintiff while you are speaking in court. In other words, discovery is work that is done before a trial, and that is the phase where you request documentation from the plaintiff. But, simply because you did not request documentation during the discovery phase should not prevent you from stating to the judge that no such documentation has been presented to the court during your trial. Simply put, the plaintiff has to prove their case, and they have to do so with every one of my points in my article covered. They will try trickery, such as waving a blank contract in front of you and asking you, "Are you saying that you never signed this contract?" And, of course, you have to simply state that you do not have sufficient information from them to form an opinion. The burden of proof is always on the plaintiff. They have to produce documentation as long as you object to their claims. They will say that you owe this debt, and you have to then say that you need to see proof, such as the original signed contract, etc., etc. etc., where you list every requirement I have written about in my article.

You sound like you have done your homework. I think you will be ready for them. Keep me posted on how you make out. Good luck to you.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Will,

In my opinion, and again, I am no lawyer, but in my opinion, merging would be the same as buying another company. In other words, if a company takes over another company, if they are going to take over any contract that your original company has with you, they have to 1.) be able to service that contract with all of the original capabilities and 2.) they have to notify you in writing that they intend to do so and get your agreement. I personally think the letter from the comptroller is nothing more than smoke screen and scare tactics to make their claim seem legitimate. Follow every point I made in my article. If they are not your original creditor, and if they do not have a signed agreement with you, I think you will prevail if you use the materials I outlined in my article.

Do your homework, fight these blood suckers, and win your case. I keep hoping more and more people turn the tables on these parasites until enough people have won their cases to put them out of business.

Good luck to you.

Brian


jkhan73 3 years ago

Brian- This is a great write up. My situation is a bit different. I filed chapter 7 bankruptcy about a year ago. Unfortunately one of the accounts (Bank of America Visa ) was a joint account with my wife. After filing bankruptcy I was no longer pursued by any of my creditors. About 5 months after filing bankruptcy my relatives started getting calls asking about my wife (my wife was bing skip-traced). Soon my wife started getting collection calls and I am sure you know how it goes from that point on. Long story short, we (she) just received a Summons, she is being sued by FIA Card Services for the debt I owe(ed) to Bank of America . This lets me know that this is a first party effort to collect on this debt. What do I do now. I have gone thru the above forum and understand that it is imperative that she show up for the court date. Other then that, this being the original creditor, I do not know what to do? Please help...


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Jkhan73,

You are right, your situation is a bit different. This is definitely a question for the lawyer who filed your bankruptcy. This is a very tangled question with many angles to the answer. You see, when you filed your bankruptcy, the cloudy part is whether or not your wife was part of that bankruptcy, also whether or not your bankruptcy meant that the entire account was wiped out, even though your wife was on the account, too. This is a very complicated issue, so my best advice to you is to get in touch with your bankruptcy attorney and ask them this question - is your wife liable for this debt?

I am puzzled by the identity of FIA Card Services relative to Bank of America. Are they one and the same? If not, it would seem to me that they are merely a collection company who bought a bad debt. But, you do need to quickly contact your original bankruptcy lawyer and find out the answer to that question regarding your wife's liability to a debt that was charged off to bankruptcy. I believe your answers will begin there. Till then, I would treat this as my article shows to do, but still, and very importantly, get the answer to that question from your attorney. It will definitely help determine your next step.

Good luck to you,

Brian


jkhan73 3 years ago

Brian thank you for your response. I filed chapter 7 so the debt was wiped out as far as I am concerned. It was an individual bankruptcy, my wife wasn't part of it. Our thought process was that her credit should survive and it never occurred to me that we had a joint credit card till this incident. I am not really 100% sure she and I had this joint account. The account is long closed so I guess there is no sure way to find that out? FIA Card Services is a division of Bank of America that buys small banks. The original debt was with MBNA and BOA acquired them via FIA Card Services.


darnoc 3 years ago

Hi Brian,

This was a great article and wish I found this a couple of months ago. I'm being sued by debt buyer for common counts open book. File I filed my denial answer in court, the court appointed a mediation date and trial date a month after. My mediation is upcoming and I was planning on settling for 20% of the amount. My question, what should be stated in the settlement agreement so that I can close this case once and for all and not have the debt buyer sell any unpaid balances to another agency. If they don't accept my settlement, I'm going to need some help on the trial. If they don't accept my settlement, I know I should not sign any agreements or pay anything, therefore creating a contract between the debt buyer and myself.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Jkhan,

There are too many unanswered questions, and because of these, there are also many possible outcomes. You really need to speak with the original attorney who handled your bankruptcy proceedings, because that is the only person who knows the extent of your bankruptcy, such as, if your wife is liable for that debt.

One question that comes to mind is whether or not you signed any agreement with Bank of America. You originated the account with MBNA, and if you did not use the card after Bank of America bought the account, there would have to be an agreement between you and Bank of America allowing them to service the account. There are lots of variables in just this bit of information alone. For example, if you defaulted on the account and made no more payments on it while it was under MBNA, and then Bank of America bought the account without an agreement from you, then this fits the scenario that I discuss in my article. But, if you were still using the card when Bank of America took over, and you thereby accepted their contract by using the card, then it goes back to what was included in the bankruptcy. For this reason, you absolutely need to speak with your bankruptcy attorney and find out where you stand, and you need to do this before you go to court. Your attorney should be willing to answer this question for free, so waste no time and get that answer. You need it in order to determine in which direction you are going to head.

The whole notion that FIA is buying this makes me wonder whether or not you have a contract with FIA, or whether your wife has a contract with them. If it were the typical situation, I would simply follow every step in my article, but the bankruptcy and the joint ownership of the account makes it a very tricky situation. Your bankruptcy attorney holds the needed answer.

Good luck to you.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Hi Darnoc,

Thank you for the kind comments. I would ask why you are settling for 20%? You are being sued by a debt buyer, not the original creditor. So why would you give this debt buyer anything? They don't own the debt. If it were me, I would assume the same stance in the meditation as I would in the court, and that is I would follow every step in my article. Mediation is a new one to me. I don't know why this would be sent to mediation, or why you would have to agree to this, because mediation is where they will try to get you on record as owning the debt and agreeing to pay them. Here is what I personally would do. I would do my best to deny them the opportunity of a mediation. Failing that, I would handle the mediation the exact same way I would handle the court appearance, and that is, I would follow every step outlined in my article. I would admit to nothing, I would demand they show every proof outlined in my article, and if I felt that I could not handle this to my advantage, then I would seek out an attorney pronto to see if the attorney could quash the mediation.

A lot of people run from the thought of getting an attorney, because they think that they can't afford one, but there are many attorneys who make a living handling these types of cases, and who are willing to do so for a small fee (under $1000). Many of them will allow you to make payments on the fee, so you could get started with a down payment of $100.

Nonetheless, no matter what you do regarding obtaining an attorney, which is really the best scenario, because they can make moves that will stop the monkey business in its tracks, you should treat any legal proceeding as if you were in court. Therefore, this mediation is simply a tactic by the debt collection company to get you into a binding contract with them, and you don't want to be there. To even offer to settle for 20% may make you liable for the entire debt if you default at any point later. Once you enter into a contract with them, you will be in a binding contract to pay the amount owed under the new agreement. You won't be able to change your mind later and fight them. So, if the amount that 20% comes out to is a very small amount and something that you will have no problem paying, it's your call, but me, personally, I could never pay money to someone who does not deserve it, and debt buyers never had a contract with anyone. They are parasites, akin to loan sharks. They never offered any services to you, they never were able to provide any of the services your original creditor rendered to you, yet they want the money for these services, as if they were the original creditor. They'd never get a dime from me, if I had anything to do with it.

The choice is yours, but do consider all of your options. Once you make an agreement in mediation, it is binding. I would recommend fighting, but I am not here to tell you what to do, only what I found to be successful for me.

Good luck to you, and best wishes.

Brian


Josh 3 years ago

This information is so very helpful so thank you so very much for sharing. I received a civil summons yesterday that i picked up today at the sherriff's office. After reading your article above I was prepared to complete the Proof of Production and to warn them of the Statute of Limations since this account is indeed over the statute for the state of NC. However when I arrived to pick it up this morning, the sherrif who served it to me said there is no court date that this is a judgement and there is no statute on judgements. How do I now proceed. I guess I am confused about the two. The judgement has an attorney's name. Do I still submit the Proof of Production immediately and send it certified? thank you in advance for any help. This site and your comments have helped to calm my nerves!!


Josh 3 years ago

I'm sorry, I meant Request for Production and typed so quicky please ignore my misspelled words! If I do send the Request for Production, that I have already prepared, do I mail it to the attorney's address that is representing the credit card company. Also, this was a BofA account that was sold to another company. This company then sold the debt to a collection agency that I set up payments with in the past. I actually stopped paying them when they withdrew funds that I did not authorize from my bank account. They also called a family memeber and shared personal information, stating that I owed a debt and actually gave the family member the amount they were attempting to collect!


Judy 3 years ago

Hi Brian,

I wrote earlier about if it was to late to send the request for production form, (thank you for your answer) I've sent it and next week I'm headed to a pretrial conference. My question is what can I expect at this pretrial conference?


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Josh,

Your case is the first one where I have heard of a judgement being issued when you were never notified of a trial or hearing that could result in a judgement against you. Something is wrong somewhere. I think you need to contact an attorney who works these types of cases and is not too expensive, because somewhere along the road, you have been side-swiped. A judgement against you, and you were not there to represent yourself? Did you have any advance notice that there was going to be a trial or hearing that could result in this judgement? If not, then you definitely need to contact a lawyer quickly, because a lawyer will know how to stop this from proceeding without representation. I would highly recommend looking in the directory for local attorneys who specialize in bankruptcy and debt collectors, and find one who is cheap, because they are all effective when it comes to this kind of case. They know how to put the brakes on, and these guys who are pursuing you need to have their brakes slammed on now.

If you have not made any payments in three or four years, depending on your state's statute of limitations, then there is no way these goons can collect...unless you enter into a new contract with them by offering to recognize the debt as yours and offer to pay on it. If you cannot retain an attorney, and I highly recommend doing so, then at least try to follow the steps outlined in my article and try to win this case by standing your ground. I am still surprised that a judgement could be had against you without your participation and without notice to you of the prior proceedings that led to this judgement. Shocking, and a competent lawyer would get this thrown out...which is why you need one now. I'm not sure about the veracity of what the sheriff told you, but if the debt was beyond the statute of limitations, and if the judgement was obtained after the statute had expired, then it is null and void. You have to have competent legal help to nullify that judgement, however, so waste no time in asking around.

One thing you mentioned is that you were making payments on the debt to this collection company, and when you made the last payment to them, not the original creditor, is when the statute of limitations begins counting.

The fact that they called someone else and revealed personal information is a legal offense, and you may want to pursue that with an attorney. My best advice is to take all of this to a competent lawyer and see what he can do for you on your budget. It will be money well-spent. If yours was an open and shut case, I would simply do what I did, represent myself using the methods outlined in my article, but there are some twists and turns in your situation that absolutely need a competent attorney to straighten out. Please call someone soon and get them involved. They can get this postponed so that you can deal with it in a proper and timely manner. You deserve this.

Best to you,

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Judy,

A pretrial conference has to be in favor of the plaintiff, and must have been something they sought in an effort to skirt around legal issues. You see, in a pretrial conference, they can ask for statements without having legal standing to do so, something they could not do in actual court. This is where they would try to gain the advantage by trying to get you to admit that the debt is yours. In court, the burden of proof is on them, and they know that they do not have the requisite proofs. So their best bet is to get you in a pretrial conference where they can skirt the legal requisites that being in court would impose. In such a situation, my best advice, if you are not steeped in legal training, is to immediately retain the services of an inexpensive attorney who specializes in bankruptcy and debt collection cases. It is money well-spent, because a competent lawyer can quash their ability to have a pretrial conference. In fact, once you retain a lawyer, the plaintiff may disappear permanently, because they know that any competent lawyer is going to demand for proofs that they cannot supply. Their goose is cooked the minute your attorney files, so I cannot recommend this enough.

If you absolutely cannot afford an attorney, be extremely careful of what you say and do in the pretrial hearing. I would stand my ground on the same demands that I would make in court. One of their tricks is to wave around a blank copy of the original contract and ask you if ever signed this. Of course, your response is that you have not been provided with sufficient information to make an informed decision regarding the question, then reiterate your demands for proofs.

In my case, I won the first round, because they realized that I knew my rights. They failed to show up in court, and I won by default. But they were real scum bags and filed an appeal to a higher court. They knew that if I appeared in that court without legal representation, chances were good that they could tie my hands with legalese and win. So, I found an attorney who took charge of the rest for a mere $600. Quashed...permanently. They went away and can never come back. Thus, my recommendation is to obtain the services of an inexpensive attorney. It is worth the investment, and some attorneys will even let you set up a payment schedule.

I trust my years of legal studies to get me through a lot, but even I know when the guys who are better trained are going to go for legal tricks that I am not well-versed in, and that is what you do not want to have happen. Anything they are asking for is most definitely not asked so that you can have a chance at defending yourself. They want to trick you into a statement that they can then use in court. If you can't afford an attorney, then speak little, stand on your defenses that are rehearsed, and as one of my attorneys once told me, don't speak unless you have to, and when you do, keep it short if it is the plaintiff asking you questions. The plaintiff wants you to make a mistake, and will often ask the same question over and over again just to try to wear you down and get you to make the mistake he or she wants to hear. If the question has been asked once, and the plaintiff asks again, simply state "Asked and answered. Please move on!" The plaintiff does not have the right to badger you, so keep that in mind.

Hopefully, you have the ability to get an inexpensive attorney. If not, all is not lost, but definitely do your homework and remember that this is a chess game with high stakes. The plaintiff will never, I repeat never, be doing anything for your benefit, so be careful how they treat you in their effort to get you to lower your guard and be extra candid. Keep your guard up, give them nothing, demand for proofs, and make their day lousy.

Good luck to you. I hope you win.

Brian

P.S. Pretrial hearings in this type of matter puzzle me. I would think that there would have to be a way for you to deny them this right, but only a competent attorney can answer that question. Might want to ask around for that answer, at least.


e.m. 3 years ago

Your advice is so precious, i am so happy that i found it online thanx to you. thank you so much. it is very, very valuable information, it's nice to know that you can defend yourself with this knowledge.

thank you again.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear E.M.,

Thank you for those kind comments. Every time my article helps another person, I am made happier. Hopefully, my article will be of some help to you, as well.

Good luck to you and best wishes,

Brian


Mike045 3 years ago

Dear Brian,

I am in awe at how empowered I feel by reading your article and this thread. I am not overly confident and remain humble in this process, but can now see an end that does not include a pit in my stomach.

A little background, debt was purchased from the original creditor by a collections agency. They choose to write assignee of "***" on all there paperwork, but it looks like the original creditor has completely sold off the debt. My understanding is that the title of assignee has no bearing on the case. I was served with papers (summons) to show up in small claims court back in October. The papers were filed by lawyers they hired in state, since the plaintiff is out of state. I sent a letter requesting validation including: a copy of the legal contract that the Plaintiff has purchased or been assigned this debt by the original creditor, the original contract between the original creditor and the Defendant and an account of the debt via account statements.

I went to the summons in November and meet with the lawyer and the Commissioner in his chambers/office and explained that I needed proof that I owed money to them and proof of how much they claim is owed. The commissioner thought this was agreeable, requested the lawyer for the Plaintiff to produce this information and rescheduled for January. I recently received a mailing that states the court date has been moved back a few weeks. I now have two weeks and still have not received the information I requested. I called the lawyer in December and they claim it just wasn't mailed yet.

I now see that my request for verification was not as robust as your Request for Production. I am worried that they will wait till the day before to provide me with documentation and hope they provide nothing at all. Should I send your request for Production anyway to rattle the cages?

I have been reading this thread, taking notes and formulating my responses. I find it very interesting and informative. I just would like to know the range of outcomes ahead of time. My understanding is that either it will be thrown out(dismissed on lack of information) or they will make a summary judgment. If they produce a signed contract and the ruling does not go my way, I have the money and am willing to pay my debt, but if they can't prove anything I'm not paying a dime!

I am unsure of this process. We saw a commissioner and it seems to me that is what will happen again? No trial, no stand? Am I missing something?

If I lose, how do I ensure that once I pay, the court and the CRA will receive proof the debt is paid?

What effects will a ruling against me in court have on me in the future, will it show in background checks for jobs?, does it disappear after 7 years?

If I win, do I receive documentation that states I won? I like a paper trail. Is there anything I should do after the fact to cover myself?

Thank you for all the great advice and time you have put in. I'm pretty sure that the statute of limitations has been reached on this debt, I haven't seen the documentation I requested for 2 months and soon I will get my day in court. After reading your words of advice, I just don't feel as lost and hope you can help with my questions.

Thank You,

Michael


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Michael,

These lawyers are playing games in hopes that they will wear you down. Follow the procedures I outlined in my article. From what you have told me here, there is no reason you should lose. The burden of proof is on the plaintiff. They have to produce the original contract, all of the charges ever made to the account, etc. They apparently do not have this, and they can't just show up in court with it if you requested it in advance. The fact that they are stalling tells me that they know their goose is cooked. Either they show up in court hoping that they will trip you up, or they are rightly worried that you will request the documentation and will demand proof of ownership. Follow everything I have outlined in my article. You don't owe these parasites anything. They were not the original creditor, and what they are engaging in is buying worthless paper and trying to hoodwink innocent people into entering into a contract with them. Don't fall for their tactics. In lower courts, such as the one you are scheduled in, you can represent yourself if you are confident. Either they show up, and you take them to task, or they don't show up, and a judgement is rendered against them. In either case, if they want to play hardball, they will appeal to a higher court, if they have the money to waste. If that happens, you then need to obtain a lawyer to represent you, at which time they usually dry up and blow away.

Don't start planning on what you will do if you lose, because you shouldn't. Plan to win. If by some strange twist you lose, then they will tell you what they want by making an offer to settle. But don't even entertain this idea until you have fought them in court. I think you'll win.

Keep me posted, and good luck.

Brian


Josh 3 years ago

Brian,

Thank you so much for your advice. I plan to reach out to an attorney on Monday but hoping that it is affordable. It was strange that the sheriff said there is no court date and that this is just a judgment. It’s a civil summons and it is checked that it is in district court so I guess I am confused. It says you are notified to appear and answer the complaint of the plaintiff as follows:

1. Serve a copy of your written answer to the complaint upon the plaintiff or plaintiff’s attorney within 30 days after you have been served. You may serve your answer by delivering a copy to the plaintiff or by mailing it to the plaintiff’s last known address and 2. File the original of the written answer with the Clerk of Superior Court of the county named above.

If you fail to answer the complaint, the plaintiff will apply to the court for the relief demanded in the complaint.

I feel like it is almost like the beginning of a trial so I was thinking I could follow the Proof of Production letter you offered in your article. The bottom of the letter says that many counties have mandatory arbitration programs in which most cases where the amount in controversy is $15k or less are heard by an arbitrator before trial. It says the parties will be notified if this case is assigned for mandatory arbitration, and, if so, what procedure is to be followed. That leads me to believe that this is sort of like a letter saying we are taking you to court and that the sheriff simply confused me. I am not savvy in legal jargon and certainly plan to reach out to an attorney but really financially will be unable to afford one.

I was making payments in good faith with the collection agency that was assigned this card. I have always had stellar credit and came upon hard times. When the first set of automatic payments expired, I and the agency had discussed setting up the next set. Before that happened, they went ahead and took money that was unauthorized which threw my account in to a negative balance and almost caused other items to bounce. My question is, if the original credit card company sold my account to this collection agency (the one that was taking payments from me at one time) how then can they take my account back? In your article you mention: If a credit card company did assign the debt to a third party, the creditor would then lose his rights to collect later. This means that your credit card company probably took a tax credit, an insurance write-off, or some such action that makes the credit card company unable to collect the debt after that point. They destroyed their records, and they moved on. The collection company does not have the original agreement with your signature, and they know that they have no case against you...unless you make the mistake of making an agreement with the collection company and then making a payment on it. Since there was no “meeting of the minds” between you and the collection company, a necessary element required to create a legal and binding contract between the two of you, their claim is repudiated.

Are you saying here that I am now responsible because I made the payments to the collection agency? But it isn’t the collection agency that is coming after me. It is back to the original creditor? I so appreciate all of your feedback, Brian. My anxiety level is rising and this is just becoming all too much!


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Josh,

If your anxiety level is rising, don't you think that is what they want you to do? Take a deep breath, then ask yourself, what's the worst thing that could happen? You are not going to go to jail. Debtors prison went out centuries ago. The worst that can happen is that you make a mistake and give them something to hang a thread on, and they then begin to weave their plot. You would end up owing them, and they could try to collect by any means possible, such as garnishing wages, or tapping your bank account. That's why some people just skip town. But, there is no need to do that just yet. First, if you were paying this collection agency, you then entered into an agreement with them, and that agreement is binding (unless they sold this debt to someone else). How to get out of that requires the expertise of a lawyer, and even though you may think that you cannot afford one, there are agencies in various cities where lawyers donate a portion of their time to help people like yourself for free. So, start researching legal services. Google the words "free legal help," or "free legal counsel." It will lead you to something. There are lawyers who make a living just defending these types of cases, and they can set a fee that you can pay in payments. If one says his fee is too high, keep calling until you find one that is reasonable. There has to be one somewhere who will help you.

Your case has a unique twist in it, because the debt was sold to a collection company, and you made payments on that agreement with that collection company, thus entering into an agreement with them. You say that the debt was then sold to another company once you defaulted. Okay, that may be helpful. One thing is for sure, it was most likely not sold back to the original creditor. That should be impossible from what I know. They took a credit, or an insurance payment, and once they did that, they could no longer collect on the original debt.

So, try to find some free legal advice. Ask lawyers how you can find someone you can afford, and explain your circumstances to them. Someone somewhere has got to have a heart and help.

Above all, fight. Treat this as you would if it were a collection company that did not have a right to the debt, and use the steps in my article. It can't hurt. My only apprehension is that you made payments to some collection company, and that makes this tricky. You need a good lawyer. Not an expensive one, just someone who does this regularly. Start looking, and don't give up hope.

Good luck to you, and remember, even if you lost, they still have to try to collect. You won't go to jail. They will simply try to find out where your money is...bank accounts, jobs, etc. They can't come take your house, your possessions, your car, or anything like that. So, fight them all the way. They deserve everything you throw at them, because they are parasites.

Best wishes,

Brian


Josh 3 years ago

Thank you again, Brian. I will let you know what happens. I am hoping to speak to an attorney on Monday to get the ball rolling.

I feel like there is hope at least for right now!


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Keep the faith.


judy 3 years ago

Hi Brain,

I have a few questions for you

1. Does a request for admission have to be served to you or can it just be mailed to you and was it supposed to be filed with the court?

2. What happens if you received a request for admission in the mail and did not mail it back in time?


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Judy,

A request for admission can be mailed to you, but I would assume that a copy of that request was filed with the court. The request must contain a copy of anything they are requesting that you admit to, such as a contract. What I would assume that they are requesting, since I have not seen the documents, is either an admission that the debt is yours, or they have sent a blank contract from the original creditor, and they want you to admit that these are yours. All you have to do is send back an answer that says:

"Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim."

Do not elaborate, do not go into detail. They know exactly what this statement means, and that is all you have to say for each and every question for which they request admission.

As for time limits, yes, there are time limits, but they can't throw you in jail because you lost the envelope and just recently found it. And if the request was not sent via registered mail, return receipt requested, then you could ignore it if you wanted to, because that is the only legal way that they can prove they sent it - your signature on the receipt. However, if they sent that request to you via certified mail, return receipt requested, and you signed for it, you have 30 days to get that back to them, or you have admitted to whatever they requested. If this is what has just happened, then you need a lawyer to get that withdrawn. If you cannot get a lawyer, then when you go to court, be prepared with a reason you failed to get it back to them in time.

This request for admission is just a ruse they use to get you to admit something that they can use in court. A good lawyer would get this thrown out, which is why I really tell people to obtain a lawyer if at all possible.

Good luck to you,

Brian


Judy 3 years ago

Brian,

First, thank you for getting back to me so soon.

I received from the Plaintifs lawyer a packet of paperwork :

1. PLAINTIFFS FIRST REQUEST FOR ADMISSIONS: which is a list that they want me to amit or deny about the account with the the creditor.

2. PLAINTIFFS FIRST SET OF INTEREOGATIORIES: Not sure what they want here. They want to know name,address, ect.about person answering these interrogatories on behalf of the defendant.

3.PLAINTIFFS FIRST REQUEST FOR PRODUCTION OF DOCUMENTS: produce documents that support my answers to the request for admission.

Then theres the plaintiffs witness list and exhibit list.

Now this paper work was sent regular mail, there isn't anything indicating it was filed with the court. The last page is a PROOF OF SERVICE: saying it was mailed out US mail on Dec. 10th.

My pretrial is in three days if I ignore this, should I be worried that by not sending this back in time, or at all, I have amitted to this account with the creditor.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Judy,

Regarding request number 1, I would have responded with: "Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim." However, since your pretrial is in 3 days, it is somewhat difficult to say where this will go. An attorney could get this delayed so that you would have time to properly prepare. Still, all is not necessarily lost. If you go to court, and they tell the judge that they mailed you a copy of their requests, any judge knows that you cannot be held responsible for a request that was not mailed certified mail with return receipt requested. They have no proof that you received their request, and the burden of proof is on them. Mail gets lost in the delivery process, and that is a fact. There are cases where mail was dropped behind machines in the process and delivered years later, so just because something was "mailed" does not mean that it was received. I would request proof that it was sent to you with your signature required on receipt of delivery. They obviously do not have that. You will be asked, possibly, whether or not you received it, and you could simply say, "Your Honor, I have not signed for any such documents." Then leave it at that.

Number 2 is simply asking if you are represented by legal counsel. It's still not too late to ask a lawyer to step in.

Number 3 is a moot issue, since you have clearly stated that: "Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim."

Regarding the plaintiff's witness list and exhibit list, without seeing it, I would almost bet that it is all bluff. They have to have the original contract with your original signature, and that is just for starters. You've read my article, so you know how much they have to produce. I doubt they can do this. Once again, they are trying to scare you into throwing in the towel by looking so official and legal. They don't own your debt, never did, and if all goes according to procedure, you should prevail. Since you have not mailed anything to them, they probably assume that this is going to be routine for them, they show up, you lose, but if you have your notes in front of you and are ready to use them, you should win. If for any reason you lost, then I would appeal and get an attorney.

Since the average person has not had lots of legal experience, I always recommend obtaining the services of an inexpensive lawyer. They do exist, and they are worth every dime they cost.

Good luck to you, and let me know how you make out.

Brian


StacyH 3 years ago

Hi Brian-

Thanks for your answers. I am freaking out a little bit just wish i could just pay off all my debt and not worry about this. But i am where i am.

1. They just sent a genric contract nothing signed. I did talk to them at first and tried to offer a settlement but they denied so this is when they sent me the summonds. Then after looking over the documents and reading your article im thinking i need to fight it. so tomorrow i will respond with my request for production. Is there a template i can use?

2. How can i tell if it is the CC company suing me or a debt collector?

3. I was making payments up until about 3 months ago because i got caught up in a debt management that basically did nothing for me. I really dont want to have to go to court but i dont have money to pay. any suggestions?


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear StacyH,

The template for Request for Production is shown at the end of my article. Your situation is very complicated, and I would recommend trying to find someone who gives free legal advice so they can tell you what to do once they can see all of the evidence. What throws a loop into things is that you were making payments to someone until just three months ago, so that puts you into a binding contract with whatever company that was. It would not be the original credit card company coming after you, since they relinquished that debt long ago. That is when the collection companies came in like the vultures they are. It sounds to me like you have been through a cycle with various agencies, and the fact that they turned down your request for a debt arrangement is not new. However, if you had to go to court, and you told the judge that you do not have the money to pay the amounts they are demanding, and that you tried to offer a payment arrangement with them, the judge could very well demand that they take an arrangement with you that would be amenable to you. A lot depends on so many circumstances that I go back to my statement about getting a lawyer. In every city, there has to be any number of lawyers who practice this segment of law, and there are some who are reasonable in their rates, some even permitting you to make installments (which you must pay, or you really end up worse off - you don't want to stiff the lawyer who saved you).

Stacy, your case is complicated by the fact that you were making payments until three months ago. Worse case scenario? You go to court, they win, you have to go back to paying them what is owed. If you can't afford those payments, you tell the judge that you need a better payment arrangement, and the judge may, or may not, be able to rectify the situation.

Do some research. Google bankruptcy lawyers, debt collection lawsuit lawyers, and any other terms that come to mind, and see if there isn't someone practicing law in your area who can help you with a reduced fee and some free legal advice for starters. If nothing else, you might be able to get a free consultation, and they can tell you what you need to do.

It's not the end of the world, even though it may feel like it. I can't recommend a lawyer enough, because a lot hinges on getting all of the facts and evidence into competent hands so they can advise you completely and accurately based on your unique circumstances.

Good luck to you,

Brian


soument 3 years ago

Hi Brian ,

My situation is that I'm literally outside the country ; It is physically / logistically impossible for me to appear in court. I have sent a letter to the court explaining that I will be outside the US on the date of the court hearing, and also that I have never personally received the court summons and have never been able to read it (insufficiency of process), since it was delivered to an address where I haven't lived in 5 years. I have also filed a Motion to Dismiss. I will also send a notice using some of the arguments in your article. I will send request for production to the attorney. I have only sent official communication (letters) to the court so far, not the collection company's lawyer. Do you know of another specific form or notice I can send in lieu of physical appearance in court?


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear soument,

The fact that you are outside of the country gives legitimate reason for a delay in any hearings until such time as you are back in the country. From what you say you have done so far, I think you have covered all the bases. The main thing at this point is informing the court that you cannot appear and stating the reasons why. The court should make allowances for this.

Good luck to you, and keep me posted on your results.

Brian


soument 3 years ago

Thanks Brian, I did contact the plaintiff attorney via email several weeks ago and told her the issues I had with the case, that the bank wrote off the account (charge off), the case is outside the statute of limitations, etc, the original loan was for a car which turned out to be defective and I never personally took possession of it, I had documented proof that it was a lemon and by GA law it was supposed to be fixed or replaced which it wasn't, I also sent documented proof to the court that my credit report does not describe anything resembling what the attorney describes (no outstanding balance is being pursued by any bank) and that she failed to give me an itemized list explaining how the alleged outstanding balance was calculated. Three weeks later, the attorney still has not acknowledged my communication (possibly because she knows I'm on to her). That was an additional thing I mentioned in my letter to the court ; that I attempted communication and my communication was ignored.

Do you think I should tell the attorney what I have shared in letters to the court, as far as the flaws and legal flimsiness of the case? Or should I just ignore her too and continue only writing to the court? thanks for all your help. Do you think I should ask for "production" even after filing for Motion to Dismiss (which is officially now listed by the court website)

Soumen (in Mexico today)


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Soumen,

The email that you sent to the plaintiff attorney was both brave and a gamble, because, if you worded it correctly, then you set the plaintiff's hair on fire, but if you worded things incorrectly, then you could have allowed for an opening for them to chip away at. I would assume that the attorney has seen the writing on the wall and has decided to cease pursuit. However, they have time limits that may still be running, so you can breathe easier when those time constraints have been consumed, and nothing has happened.

Ideally, you should have sent any communication with the plaintiff via certified mail, return receipt requested, because that is the court admissible proof that shows that you did indeed convey these things to the plaintiff. An email may, or may not, be admissible. For that, you would need to check with someone versed in law in your particular state.

At this point, I would not share anything with the plaintiff that you have written to the court. Less is often more when it comes to waiting to present what is needed, only if and when it is needed.

Everything seems to be on your side from what you wrote, so I feel that you have a strong case and, pursued properly, should result in a victory for you. I think this plaintiff needs to go find someone else to pick on.

Brian


soument 3 years ago

lol, thanks Brian... sorry to repeat myself ; do you think I should still send request for "production", after I've already filed Motion to Dismiss?


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Soument,

Sending the request for production most likely couldn't hurt. It's just covering every base, so I don't see how it would hurt. Some lawyers might disagree with me, and some would agree, but it's certainly open for them to debate as to whether or not it would be necessary, or extra effectual.

Brian


soument 3 years ago

I'll very likely send the form this week ; I'm only in the US about 3 times a month for a few hours. I stated that to the court as well, that e-mail and mailing services in Miami are the only way I've been able to reach them. As of more than a month after the lawsuit was filed, I still have not personally received the court summons that was supposed to be delivered to me; I haven't lived at the address on the notice, since 2008. That is blatantly unfair in my opinion. But anyway, is there some way to respectfully ask the judge to review the material I've sent to the court and simply make a summary judgement? That's hopefully my next step in a couple weeks...


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Before I asked any judge to make a summary judgement, I would run everything by a competent lawyer. Once a judge rules, it sticks, and if for any reason you missed a minor rule and left it open to the plaintiff, the judge could cost you having to file an appeal by ruling in favor of the plaintiff. In my opinion, these judges seem to favor the plaintiffs unfairly by granting the defendant a dismissal of the charges, but without prejudice, which means that the plaintiff can file an appeal and take you to a higher court. I think the judges should dismiss with prejudice, but I have seen them do the opposite. Because they can do this, and because they have done this, I don't trust the judges to be in the defendant's favor. Knowing this, I recommend having a competent lawyer go over your paperwork before you file. Nonetheless, if you feel confident in what you are writing and don't have the money to hire an attorney, the choice of going forward with such a request to the judge is certainly within your right.

Keep me posted on how things turn out for you, and my sincerest best wishes,

Brian


Mike 3 years ago

Dear Brian, Firstly; thank you for this ongoing discussion where much valuable knowledge is most appreciated. ..I have read many of the postings above and found them to be helpful. I'd just like to double check with you and make sure that my first move is the proper one. I received a notice to appear in court next month, for a debt that was signed off in 2009, to a store charge account. It states the original amount owed, then there is accrued interest after the date of the sale from the origianl creditor to the Collector that purchased the debt from them. My question is this: I have already sent the "motion to defend" myself form back to the court. Do I now send the "Request for Production" form that you have provided? I thank you in advance for your time. Mike


soument 3 years ago

I just searched the Magistrate Court's website, and found that there's an official entry which basically states that my brother told the officer (that tried to serve me the lawsuit) that I had moved. The webpage also confirms that my answer to the lawsuit was filed within 3 weeks of the suit being filed. Hopefully these two details work in my favor and discourage the attorney (who apparently has dozens of open cases)


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Mike,

I'm glad to hear that you are enjoying the information that is exchanged here. I guess this is becoming the school of Beating Credit Card Debt Collectors.

To answer your question, yes, you need to send the request for production in a timely fashion, which usually means within thirty days. If nothing else, this lets the plaintiff know that you are not going to be a rollover. Since your debt was charged off in 2009, if no payments have been made since then, I would check to see if the time limits have expired in your state. It is 3 or 4 years, depending on which state you live in, so check to see if this has happened, because, if it has, this is grounds for dismissal.

Do your homework, and you should win. Good luck to you.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Soument,

Everything you saw there on the website seems to indicate positives in your favor. And the fact that your plaintiff attorney has dozens of cases open is no surprise. They are a suing factory, churning out paper with people's lives in the balance like toilet paper. They have no concern for the damage they do to people's lives, or to the economy. They are blood-sucking parasites, and someday I hope they are legislated out of business. Maybe when enough people read my article and realize all that is going on, the rights that innocent people have, and the fact that no politicians have grabbed this issue and ran with it...maybe then we'll finally see this scourge end.

Brian


Mike 3 years ago

Dear Brian, Thank you so much for getting back to me. I appreciate it. I live in Pennsylvania, like you. The debt was charged off in December of 2009, so I believe that there is no ground for dismissal. They filed on December 14, 2012. ...I shall send in the "request" today and see what happens. I guess I'll plan on showing up to court and letting the court decide what to do with this. The attorney is in Scranton, so hopefully, they won't show up. Thank you again, this is a much resourceful site.


soument 3 years ago

Just mailed off my request for production (certified), sent a copy of that to the court along with another letter using some of the arguments in your article and letting them know I'll be outside the US... fingers crossed


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Mike,

You said the attorney is in Scranton. I would almost venture a guess as to who that "attorney" is, because the one firm that I dealt with is actually a collection company posing as a law firm, and they are simply a business that hires attorneys to go to the courtroom and represent them. If it is the same outfit, they will not show up in court if you filed the request for production, but don't be surprised if they file an appeal. That is their corrupt way of trying to win through wearing you down. If you win in the lower court, and they end up appealing, do get a lawyer at that time, and they will know how to permanently end any more shenanigans.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Soument,

I'm keeping my fingers crossed for you, too.

Brian


Mike 3 years ago

Hi Brian, Thanks for the head's up! M.ch..l R.tchf.rd...Is the name of the attorney. Is the the same that you've dealt with?

Thanks, Mikey


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Mike,

You can say the name Edwin A. Abrahamsen and Associates in Scranton, Pa., because, yes, this is the same outfit that goes after credit card debt collections. And you can also say Michael F. Ratchford who is with the same outfit. It's a free country, and free speech is still a right for all citizens. I will add that they have been beaten in court by using the knowledge contained in my article, and you can beat them, too.

Brian


Josh 3 years ago

Brian

I spoke to you last week about the civil summons I received or judgment. I reached out to several attorneys in the area who really were not interested in taking on the case. Even the ones that would do it wanted $150 hourly. So if I had that money I obviously wouldn’t be in this situation…LOL. So I am going it alone on this but wanted to give you an update. I did seek some legal advice online for a small fee and found that I do have to provide an answer to what they claim. I was told to write only admit or deny to the 6 allegations and to provide as little information as possible. Apparently they will then reach out to me with a court date once I send this back to the plaintiff’s attorney and the court. I believe I then can follow your instructions to perhaps get myself out of this nightmare. So stressed out….


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Josh,

It sounds like you found a few of the bad apples who only want money and couldn't care less about the plight of their fellow human beings. I still think that there should be some legal services somewhere that offer free or low cost help. Be that as it may, I would recommend still researching that issue while you continue to fight, because you may just find an inexpensive lawyer yet. Meanwhile, I don't know what website you found that gave you that advice, but be careful when doing so, because there are websites that pose as helpful, and in reality, they are written by pro-collection company writers.

Whatever you do, you never want to admit to anything, and whatever you put in writing can be used in court as an admission. So, if you are told that you have to answer inquiries that are put forth, yes, you have to answer requests sent by the plaintiff's attorney, but I would answer each and every one with a single statement:

"Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim."

Stay on the safe side with regard to your case, and don't give up information unnecessarily. No plaintiff has any right to ask you to try yourself and condemn yourself, in other words, they can't ask you such a stupid question as, "Did you sign this contract and default on it?" Or, "Do you admit that you owe this debt?" These are incriminating questions, and unscrupulous lawyers will ask innocent people these questions hoping they are naive enough to answer them in the affirmative.

So, any questions that you answer by requirement, ask yourself if this is a question that is trying to give the collection company rights they do not deserve, and if the answer is yes, then you have the answer that you should be giving them. Let them try to get those answers in court, and the answer will be the same.

Re-read my entire article, and re-read it some more. The fact that you are worrying tells me that you are forgetting some of the material that I placed in there. Your entire defense is laid out in that article for you, so keep studying it. And keep believing in yourself. You deserve to win.

Brian


Josh 3 years ago

Thank you, Brian. I will re-read and re-read this article. I still have no idea what is going to happen but I am going to deliver a copy of my answers to the Clerk of Court as required and mail the copy to the Plantiff's attorney. I wanted to send it certified but they only provide a PO Box so I guess I have to assume that they receive it. It worries me a bit but I suppose if the Court has it then I should be ok. I was advised to send as you see this below: Questions I was asked:1. The plaintiff is a state banking association organized under the laws of the state of Delaware, with a principal office and place of business in Wilmington, Delaware.

2. The defendant is a resident of County, NC

3. The plaintiff opened a credit account for the defendant at the request of the defendant and extended credit to the defendant through his account.

4. The defendant accepted and used the credit provided by the plaintiff and incurred balances due on the account that the defendant agreed to pay to the plaintiff.

5. The defendant is in default of the agreement to repay the plaintiff the credit provided through the account, in that said defendant has failed to make the monthly payments required as they became due.

6. Pursuant to the agreement, the defendant is lawfully indebted to the plaintiff in the sum of $9,716.37.

My response:

STATE OF NORTH CAROLINA IN THE GENERAL COURT FO JUSTICE

COUNTY OF DISTRICT COURT

ANSWER

The Defendant, name hereby files her answer to the Plaintiff's complaint and states as follows:

1. No knowledge and therefore deny.

2. Admit

3. Deny

4. Deny

5. Deny

6. Deny

Dated this 11th day of January, 2013

Name

Address

Should I use what you recommend or just keep it at Accept/Deny.

Again, thank you for your help!!!!


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Josh,

I think you are fine at this stage of the game to simply deny each of the statements. Later, they may ask for proofs for your denials, such as documentation for your claims, and if that happens, you simply state the prepared line that I gave you before.

What intrigues me about your case is that you were making payments to a collection company, not your original creditor. You had said before that the original credit card company had taken this account back over from the collection company, unless I misunderstood you, and that is what puzzles me. Credit card companies that write off a debt cannot re-open that account for collection. So I wonder where you got the feeling that this was the case? Also, what makes your case unique is that the collection company was receiving payments from you. If I were an attorney, and I am not, I would have subpoenaed the original letters from the collection company that were used to scare you into making payments to them, because if there was any misrepresentation in those communications, I would move to have them nullified. Having made payments to this collection company constitutes a contract, but not paying them for an extended period of time starts getting into murky waters as to what recourse they have legally. They are claiming ownership of a debt you incurred in another state, Delaware, and they are trying to collect on a "debt" you may or may not owe them in your state. It does get tricky, which is why I suggested getting an attorney to advise you. If nothing else, I would have paid a lawyer his $100 consultation fee to just get some answers relative to your state.

Nonetheless, you'll have to keep your wits, not panic, plan your strategy, think each challenge through, find the weakness in anything they say, watch what you put in writing, and keep researching the law as pertains to your case. They way I see it, you were lied to in order to get you to start making payments to a company that did not deserve your money. They were not the original creditor, so how did they get you to start making payments to them? Therein lies a legal defense. Without knowing all of the particulars of your situation, I cannot give you the best advice, but if it were me, and knowing the little I know from what you have given, I would be looking at how they got you to start making payments to them and work to find what they did wrong.

Keep fighting. You deserve to win.

Brian


soument 3 years ago

Apparently the Magistrate Court has received my request for production, and I sent one certified mail to the attorney. Also, the court has received an additional letter reiterating that I'm outside the country, and I used some of the arguments in your article. There is an new entry on the website that says "notice of hearing". I'm wondering if it's the same hearing as before, or if there's a new hearing based on my letters & request for production. I'll have to wait and see. I wonder how the attorney will react to my request...


HalfwayGone profile image

HalfwayGone 3 years ago from Ohio

This is all very interesting and quite a bit to chew on. I am in a situation where things are definitely hard financially. While I have more money in the bank, at least my checking account, then I have had in quite a long time, admittedly that is only because of 2 reasons. I received a small pension (less than $5,000) which I deposited last month, and I stopped paying on my credit card when times were tough. Looking back, it was kind of stupid as I probably could have paid some of those months and wouldn't even be in this situation. But I've had money problems before, and the last two years have been so stressful that I sometimes get in a panic, sometimes even when I don't have to.

Anyway, live and learn I guess. My Bank of America Account was charged off last month. I actually tried to contact them on December 31st, but didn't know they were closing their call center early, so I missed them. It has a balance of $21,951 on it. The only contact I've had with Bank of America since was 2 days in a row when I called them on about the 7th or 8th of this month to try to work something out or make a payment. They said it had been charged off and to call their recovery department the next day. I'd read some on charge offs and how to minimize the damage on your Credit Report by trying to negotiate with the original creditor. I talked with the Recovery Department and asked them if I could negotiate with a manager and they said no, the account had been sold to Fred Hanna & Associates-who by internet research seems to be the sleaziest debt collector around. Individuals with Fred Hanna's office have called anywhere from 2-3 times a day since. I haven't spoken with them once. Sometimes it's been deliberate avoidance and other times it's been where I legitimately was not around for their call or able to take a call. I've received no letters from them yet.

I know you're not an attorney and haven't seen yet if anyone on the page actually is. I'm sure I'll have some questions that may best be answered by one.

Here's some food for thought though. On this particular account, I don't know that I EVER SIGNED A CONTRACT. It's hard to recall, because I had the card for 7 or 8 years. But as I recall, almost everything if not everything was done over the phone. I recall that I agreed to the card as part of a balance transfer from another card. They were giving me a better interest rate and I even liked the fact that the card had my college logo/mascot on it and I distinctly recall agreeing to the deal on the phone and to this day remember the last thing the rep said, that a certain percentage of my purchases would go to Wright State University. So I don't know if my signature was ever on anything, period. I could possibly be wrong, like I said it's been about 8 years and I could have very well filled out a paper application and mailed it in. But I want to say it was a telemarketing type of scenario.

Also, skimming through, and as an aside to one of your last comments, I think there are rare instances where an original creditor will take back a charged off account. Sometimes they charge it off and don't sell it but assign it to a collection agency in house or even their attorney. I've even heard of them pulling back or buying back charged off debt if the debtor says "I'm ready to make a settlement" and gives them ample reason to do so.

As anyone heard of Todd Wetzelberger? Apparently he has a whole system that explains how he beat credit card debtors and outlines some very interesting things about the industry as a whole. But I would think most people in debt would not feel comfortable paying basically $2400 with $800 up front or basically $2000 all at once as a "discount". If all of us could do that or felt comfortable doing that we probably wouldn't even have debt collectors calling us. :)

Here is his site just for perusing. You'll have to copy and paste into your url, sorry.

http://credit-card-judo.com/get-out-of-debt/


Josh 3 years ago

Brian,

I am confused too! In 2006 the card was a BofA card. About 2 years into it it became a card no longer owned by BofA but sold to Barclay's bank. The card was not in collections at the time as my spouse and I were both working very high paying jobs. Between travel and other items it was not a big deal to make such large payments on our cards. When we both faced unemployment in our fields and went from making half of our income, keeping up with the payments was becoming increasingly difficult. Obviously we had to make the choice of saving our home and keeping our cars in tact so that we could get to work and keep our heads above water. The first thing that had to be ignored was our credit card payment(this was our only one). I hating doing it, as we have alwasy had excellent credit but desperate times called for desperate measures. In good faith I tried my best to keep above water and then as payments slipped, I began receiving calls from Branchfield Law Group. A law firm who claimed to be now handling the debt for Barclay's. Because I wasn't sure who they were and they were calling several times a day and I do work, I did not answer my phone. They called my sister looking for me and disclosed to her that they were calling about a debt and proceeded to tell her the amount! I was so embarassed! Perhaps, they really were not a collection agency? I immediately called and told them my dismay with having reached out to a family member. They were very mean and had me in tears saying that they could call my neighbors if they wanted to. To avoid a nervous breakdown, I actually worked with a gentleman there who was extremly nice. I think he felt so bad for me because he probably thought I was ready to jump off a bridge. He sounded like he wanted to do all he could to help me and we palnned to setup payments of $100 a month over a 6 month period with the understanding that prior to the 6 month timeframe expiring, we would talk again and setup some more payments. I even felt like at that time perhaps I could do more than $100 a month and maybe even be in a position to bump it up to $200. The very first time they took their scheduled payment it was $200. I was so annoyed. I was like he told me $100. I reached out and couldn't get a hold of him and got the run around. Being so scared,as he did tell me that if I didn't set this up I would face having my wages garnished and a terrible lawsuit, I allowed the $200 to be deducted for the 6 months. It made some other items tight so I stopped taking my perscription drugs and cut back on grocery items. Once the 6 months was up, I was relieved that no more payments would be coming out and knew they would begin to call me again. To my dismay, they never called and again, they took their $200 only this time it was not authoirized because it was the 7th month. It even came out on a different date! It was actually totally random. With that I called and freaked out because it almost caused other payments to bounce. Luckily, we were able to rob peter to pay paul to avoid anything bouncing on our checking account. Since that occured and I basically went balistic on them, causing them to cut me a check for that unauthorized amount, they went away. Now, this has occured. I came home last week to a letter on my door from the sherrif's office and this has started the beginning of this next phase, now the civil summons. Now my only thought is that perhaps this Brachfield Law Group isn't a collection agency? I did look them up online and it appears they are. I even saw some terrible reviews of other people having problems with them. But is it possible that credit cards companies really are not selling the debt but just using a law firm to handle cards that are in collections. Maybe it is their loop hole of avoiding the things you mention in your article?


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Josh,

After reading this latest bit of information you provided, I would say that your debt was bought by a collection company, and they used trickery to get you to pay them. On this basis, they misrepresented themselves and committed fraud. That is how I would attack their claims in court. Pure and simple, they posed as your original creditor, which they are not, and they offered low payments, then took higher payments, payments which you did not agree to. I think these things add to your chances of beating them when it comes to court. Also, the fact that they called anyone else but you and revealed your debt to that other entity, even your sister, is illegal and gives you rights to sue them. You'll need documentation of all of this, but these facts certainly give you some ammunition.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear HalfwayGone,

In your case, as in the case of many who signed up for a credit card this way, you opened the account over the phone, and your signing of the contract was actually verbal. You may or may not recall, but at some point during the conversation, you were told that this portion of the call will be recorded, and that recorded portion was you entering into a contract with the creditor. Nonetheless, you are at the early stage of collections in which they will harass you endlessly trying to get you to break down and talk to them. They want you on record saying that you will pay them. So, don't talk with them any more than to say, "You've called the wrong number," and then hang up. At some point in time, they will finally either sell the account to someone else to collect, or they will take you to court. Any amount over $1000 is enough to make it worth their time and expense to go after, and from the amount you said you owed, they won't be giving up any time soon.

Your debt is not past the statute of limitations, so they have several years before they have to go to court to try and get their money. It is anybody's guess as to when they actually will, but be ready for that event, because I can't imagine them not coming after that amount.

You'll have to play it by ear. If they offer a lower settlement to pay off the balance, and you feel that you can do that, then you may want to settle, but, the fact that the original creditor has written off the debt works in your favor.

Good luck to you, and best wishes,

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

I can't imagine that there are two hearings, but to be sure, you need to contact the court.

Brian


HalfwayGone profile image

HalfwayGone 3 years ago from Ohio

Brian,

I think is is a worthwhile page and subject and a lot of good information is being put out for ALL OF US to take in. One thing I would caution or advise, and I would imagine you would agree, is when in doubt, if you can afford one, or even just get good info out of a free consultation, talk to a local attorney. I don't doubt that the signed contract is vital in many cases. But I know I've seen some comments from attorneys who have said courts will accept or have accepted other proofs in lieu of an actual contract. I actually read where Georgia courts basically ruled that the act of accepting and using a credit card created a binding contract. So I imagine it's always worth speaking to a good consumer law attorney who is familiar with precedent and case law to see if one's state courts have typically required a signed contract to prove legal right and validation to collect on the debt from the defendant. I would hate to see someone go to court in say Georgia with their main hopes built up on the thought "they won't have my signed contract" and have a sharp collection attorney cite the case that found a credit card is a contract and using it is accepting the terms. The case for the defendant may not be doomed at that point, but I can imagine a novice defending himself or herself feeling crushed at that point.

Not disputing your case or information Brian. Just saying a word to the wise, you know? I appreciate your response to me as well and have the bad feeling when it comes down to it I will probably have to settle something with these sleaze balls. But we'll see.


LYD 3 years ago

Brian,

Thanks for making this information available for the general public, especially people like me who are not familiar with the debt law suit procedures. I wish I had come across this earlier. I do have a lawsuit case coming up for trial in a few days and I am planning on using this advice. In this case it was actually a lease equipment that I defaulted on. Basically this was a rent to own, however, I had to close the business due to economic hardship. I tried to work a payment plan with the company but they did not agree, and they refused to pick up the equipment as well . On this contract I was the guarantor so I am being held personally responsible for payment. Any way I found out the account was charged off by the original creditor. A debt collector has sued me and the account is two months away to qualify for statute of limitation in MD. I did send interrogatory letter to the debt collector. But the attorney handling the case refuses to answer because the time has expired. The pleadings came with a bill of sale which does not have my name on it or a business letter head. Which I made them aware in my response that it does not pertains to me, but the debt collector still claims they are the holder of the account. The bill of sale looks like it was a bunch of debt that was purchased. There are two dates on there, one is the purchase agreement date (this date listed was actually b4 I went into contract with the original creditor and this is one of my defense). The second date which is at the bottom part of the agreement is more recent and seems to be referencing the signature on the Bill of Sale. They also include a copy of a contract which looks similar to original. My question here is even though this is not a credit card can I still use some of the steps you listed. Also if the original contract states that an acct. can be sold or transferred at any time without notice and the new owner will have same rights and benefits but will not have to perform any of the original creditor’s application, can I still challenged the debt collector with the points you raised?

Thank you in advance.


PIKEadk 3 years ago

Mr. Hanavee, let me first say thank you very much for this article. Because of it I was able to win judgement against Portfolio Revovery Associates. I would also like to thank filmbob for his comments on here, they were very helpful. The attorney for PRA did not even show up for the trial so she sent a "representative" of hers on her behalf. I happened to see her sit down and look at the details of the case and called my name and asked if it would be alright to speak in a room next door. She then showed me the "Evidence" they had: photocopies bits of statements, a thrown together "bill of sale" and she said to me "As you can see we have all the evidence we need, so how do you want to proceed". Then she went over explaining to me how these cases usually go and tried to explain the entire process of debt collection for some reason. She then said "Is this all making sense to you, I know these legal talk can be confusing for most people" :) So I just sat calmly letting her talk and then did a quick rundown of why this was not sufficient evidence and how I knew I had a right to ask for proof of every transaction. I wish you could have seen the look on here face heh. Then she stated "Well, what we are going to do is award a judgement in your favor" which they did. I thought that was the end of it, but now I received a notification that upon request for appeal(DeNovo) the case was transferred to the Circuit Court(it was small claims the first trial) which I think is a bit strange since they were the ones who entered a judgement in my favor the first time. So the notification says that I will be notified of a trial date at a later time. So I'm asking you Mr. Hanavee....should I do the same thing as before with the other trial or what? Thanks


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear PIKEadk,

Congratulations on winning at the first level. You did right, and you won. However, the battle is not completely over, because these blood suckers have filed an appeal. That is where they hope to get you, because at the higher court level, the rules get much stricter, and you absolutely must find an attorney to represent you. You do not want to go into THAT court and act as your own attorney, unless you have a very strong legal background. Find an inexpensive lawyer who is willing to get this quashed for a small fee. He will file with the court, and he will call the plaintiff to let them know that they do not have a case, and that he will be representing you if they are foolish enough to proceed. Once he files and talks with them, they will disappear forever.

By all means, follow through with this last requisite. It is very important. Good luck to you. Keep me posted.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear LYD,

Let me jump ahead and say that any contract that states that an account can be transferred does not mean that you have to agree to it. In other words, once they transfer the account to some other entity, that entity has to then notify you in writing that they are now servicing your account and providing new services. You then have a right to terminate that agreement. For the extent of this, you want to check the applicable laws in your state. Nonetheless, I don't think that clause will protect the collection company that bought your debt. Just my opinion. My personal view is that they would not qualify, because that transfer clause was most likely provided for the sale of services to another company that could continue to provide the same services. This is a fine point, and I would research your state's laws relative to that point, and I would look at the exact wording in your original contract.

It strikes me as odd, yet expected, that the attorney would not respond due to time limits. Okay, he has the right...maybe. Or maybe he knows that you are not going to be an easy battle and you have already rattled his cage. I don't know.

It is interesting that they refused to pick up the equipment from the original contract. You may want to include this in your court appearance, and you most definitely want to be able to document this statement.

Naturally, the collection agency got busy and sued you two months before the statute of limitations expired, because they know this is their last chance to get that money. Nonetheless, it is not their money. My article shows you why the money is not theirs. Follow everything I showed in my article, and you should be fine at the lower court level. If it gets kicked up to a higher court level, then by all means, get an attorney to quash the entire thing.

Good luck to you, and best wishes,

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear HalfwayGone,

I always recommend getting an attorney if a person can afford one, especially if the case is moved to a higher court level. However, one thing you are confusing here is contract law and what constitutes a contract. A contract entered into between a person and a credit card company, for example, is a binding contract as long as it includes all of the necessary components of a proper contract. Agreement can and should be in writing, but in some cases, it can be verbal. There are written contracts, and there are verbal or express contracts. A credit card company can enter into a contract with a person over the phone if that state permits a recorded conversation to support such contract. In these cases, the person applying for the credit card must be informed that they are being recorded and then must be recorded accepting the terms. After they have been mailed a copy of the terms, if they find any of the terms dispute the original contract, they can terminate that contract for just cause. However, and this is where I think you are getting confused, no contract that you enter into with a credit card company can be bought by another company without your permission. You must enter into a new contract with the new company, and that new company must be able to service your credit card. A collection company does not have a contract with you, nor can they service your credit card. They are leeches, plain and simple, trying to find a way to get you to pay them what you owed someone else, and there is no law that will give them this right...unless...unless you give them that right by agreeing to pay them. If you enter into a new contract with the collection company (which you should never do), then you become liable for whatever amount you have agreed to pay them.

Point is, you can have a contract with anyone, but there has to be a contract in order to enforce it, and a contract cannot be entered into without your permission. No one can buy your contract without your permission. No one can transfer your contract without your permission.

You have not entered into a contract with a collection company simply because you had a contract with a credit card company. I hope this makes it clear.

Brian


Judy 3 years ago

Brian,

Heres an update on my lawsuit ... I went to my pre-trail conference, I was in front of the Judge all of maybe 5 mins. He said I need to answer the Plaintiffs request for admissions ( as I mentioned in an earlier post I failed to respond to this request in time) in which the Plaintiff gave me a copy. I was told to send a copy to the Plaintiff and file a copy with the court. The Judge also told the Plaintiff they have to respond to my request for production, even though I did not send it out in time. He did tell me that they do NOT have to provide me with the original agreement with my signature because with a credit card once you use it, you have entered into a contract with the creditor. He also said they will have to prove everything else.

Now the thing is, I have not been provided with the proof that " I entered into any contract with the Plaintiff's assignor" (as they put it), so do I just respond by stating my original statement of " Lack of knowledge" to all questions? And is there a "special" form I should use to answer this request?


HalfwayGone profile image

HalfwayGone 3 years ago from Ohio

I don't think we disagree Brian, and I don't even know that I"m confused. I do think you stated your position quite well though. All I was saying is as someone who has been researching stuff online like the dickens is I see people who claim they won cases because the plantiff could not produce any agreement with a signature on it. I don't necessarily doubt they did, but when I see a Georgia attorney saying the debt collector doesn't need to present a signed contract in court, well, I'd say at least in Georgia they don't need to present a signed contract in court.

I would agree the contractual terms should not transfer just because someone buys the debt though-especially when the debtor doesn't know their account has been sold or who has bought it until they start getting those calls. I do think it kind of is a fraud, because as someone put it, it's like debt collectors wanting rewarded by the debtor or legal system because they made a bad or unwise investment. It's silly- but in almost all cases it works.

One thing I have heard that may put a fly in the ointment of the whole contract not being able to transfer thing is I think I have heard that in some of those contracts or terms and conditions that it might say the rights to collect on the debt can be transferred to the creditor's assignee. I don't know the exact wording, and I'll admit I may try to find terms and conditions of my own card. I would think if you signed a contract, were signed up over the phone, and used the card then you just might be screwed. But then, I'm not an attorney either. Unfortunately, next to no one reads an entire Cardholder Agreement I imagine, myself included. They skim through the rates and maybe a couple of other matters, and they probably don't even read any fine print about defaults, delinquencies, or charge offs, because most responsible people who have maintained good credit and who have halfway decent jobs aren't planning to get into that kind of predicament. I know I didn't.


HalfwayGone profile image

HalfwayGone 3 years ago from Ohio

This is actually what my Bank of America agreement says on the matter.

WE MAY SELL YOUR ACCOUNT

We may at any time, and without notice to you, sell, assign or transfer your account, any amounts due on your account, this

Agreement, or our rights or obligations under your account or this Agreement to any person or entity. The person or entity to

whom we make any such sale, assignment or transfer shall be entitled to all of our rights and shall assume our obligations

under this Agreement, to the extent sold, assigned or transferred.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Judy,

That is interesting that the judge required the plaintiff's attorney to file answers to your request for production. Seems like he was trying to be fair to all sides, which speaks well of that judge. I have seen judges who seem to routinely favor the collection company in spite of the law, which for a judge to act this way is unfair and biased. So, the fact that this judge has hit them with your request for production puts a huge weight on them to fulfill. They can't come up with what they are required, so I wonder what they will do next?

It is a bit odd that he would say that they do not have to provide you with the original contract, because that is the law, so I don't know why he would say that. Unless you said something that served as admission that you had used the card, his action there puzzles me. Still, he is right about the fact that once you have used a credit card, you have entered into a contract with the credit card company. Nonetheless, the plaintiff has to prove that you used the card by showing dates of purchases, amounts purchased, items purchased, payments made and dates of all payments made. They are not going to have any of this, and for them to prove a debt, they have to have all of these items as proof that you made these purchases and owe these amounts.

You don't need a special form. Whatever the plaintiff handed you is all you need. Just attach your answers to each question, and file a copy of all of that with the judge. Simply deny any knowledge of the account because - " Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim."

Sounds like you won round one with the judge requiring the plaintiff to fork over answers to your request for production. They ought to just throw in the towel at this point, and they may do just that, but some of these blood suckers have a few tricks they like to pull. Stay sharp and calculate your steps. Here's hoping you win.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear HalfwayDone,

I think the point you are missing is that while there are many ways a person can enter into a binding contract with a credit card company, and I have studied enough law to know all of them, there is no binding contract between a person who defaulted on a credit card and any collection company...until, and unless, the debtor creates a new and binding contract with the collection company. It is for this reason that the collection company has to resort to subterfuge to get one, such as suing the debtor in court and hoping that the defendant does not show or is ill-prepared, or calling and trying get the debtor to unwittingly make payment arrangements. Only these actions can result in a new contract with the debtor ending up owing the collection company. If the collection company owned the debt without this, the collection company could simply begin garnishing the wages of the debtor or attaching their bank accounts. They cannot, and that fact that they cannot shows that they do not own the debt, even though they "bought" it from the system.

I hope this finally clarifies things for you. Debtors have a contract with the creditor, not the collection company.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear HalfwayGone,

Again, you are missing the fact that is contained in the original contract with the debtor and the credit card company. Please note the line "...and shall assume our obligations." A debt collection company "cannot" assume the obligations of a credit card company, unless they can issue and service credit. They cannot issue credit, therefore, they cannot service any obligations of the issuing credit card company. This is federal law. A credit card company can sell your credit card account to any other credit card company as long as that credit card company can provide all of the services promised in your original credit card company's contract, including interest rates, etc. If your original credit card company sells your account to another company, the new company must notify you of the changes and allow you the right to opt out.

None of this pertains to collection companies.

Brian


HalfwayGone profile image

HalfwayGone 3 years ago from Ohio

Interesting Brian. I do tend to agree with your reasoning. I think it takes a sharp, well prepared person though, whether they're going pro se or whether they have an attorney representing them to point this kind of stuff out in court. People are going in largely, and unfortunately, presumed guilty in many cases I think, even by the courts although they would never admit as much. But one thing that does give hope is more than one source and more than one judge has said 90% or more of the debt collection lawsuits filed could be beaten.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear HalfwayGone,

You're quite right about judges knowing that these cases could be beaten. Sadly, they cannot represent the defendant from the bench, so they sit there and watch all of these poor people get abused by legal trickery. And even though many people feel that they cannot afford a lawyer, in most cases, there is legal help somewhere within their reaches if they would just spend the proper time researching aid. I cringe when people go into court unrepresented, because that is precisely what collection companies want. At least there are people reading and applying what is in my article, and they are winning their cases. That gives me some hope that we are turning the tables on these blood suckers, even if it's just a few cases at a time.

I tell everybody, if you can get a lawyer, by all means do so, but if you absolutely cannot get one, then do all the homework and prepare as best you can. At least what I have put in my article gives them a fighting chance.

Brian


LYD 3 years ago

Brian a BIG THANK YOU TO YOU. The Lord Bless your heart and continue to grant you more wisdom. I went to court today for the Merit trial and my case was dismissed by the Judge. HURAY! I did follow the steps and it WORKED. I ENCOURAGE EVERYONE to PLEASE UTILIZE THE PROCEDURE especially those with no attorneys. Let me give you the details. First the Judge told everyone who had a debt case ( most of these cases had to do with credit card companies) to try and see how best they can settle with the plaintiff because he claimed winning the case is usually 50%. Please don’t get intimidated when you hear this. The lawyer for the plaintiff asked for a merit trial and there was a facilitator and this lawyer framed everything to look as if they had been legally assigned by the original creditor. He showed a contract that was similar to the original contract and I used the answer for no.1. The facilitator asked me if I wanted to settle and I said no I want a trial. We came back to the court room. The lawyer for the plaintiff took the document that looked similar to my original contract and asked me if I had a contract with the original creditor and did I owe them money. My answer was “Yes, but you are not XYZ (original creditor), and according to XYZ the account was charged off. I believe if I had said yes and stopped, he could have used this against me. He also made a comment he was not aware the account has been charged off. Which is a lie. The next thing is he came over to me with a copy of a contract claiming my signature was on there and asked if this was my signature. I answered him with the first answer on your article (Without sufficient knowledge…..). He asked me about the signature three times, and I kept repeating the same answer, he even asked me to read the document and I refused and kept repeating the same answer, he then admitted to the judge he can’t force me to answer. He then referred to the Bill of Sale and I told him since my name is not on it, and there is no letter head or notarization it does not pertain to me. I continued with ANSWER 7 on the article using the explanation you gave and quoted the FAIR DEBT LAW. The judge was kind of surprise as well as the court administrative staff with my responses. The judge requested for the documents and looked at it and said this document does not prove the plaintiff has been assigned to the original contract, and even if he is, he did not file the case correct so the case has been dismissed. Hopefully, it is not filed again. My next step is to use the result of this case to dispute the report on my credit, which is my concern now. Again, I encourage all readers not to be intimidated by these lawyers, as Brian said if you have made no agreement with them then you are not required to pay them. It’s sad as I sat in the court room all the cases that were held before mine the defendants had agreed to pay the debt collector due to ignorance. I RECOMMEND FOLLOWING Brian’s advice, read the posted article until you understand every point and you will walk out of court feeling like a potential lawyer. Brian, thanks again!


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear LYD,

Congratulations! You made my day! Every time I hear someone has beat these "debt collectors" using their legal rights, I cheer. I am so happy that you beat them, and that you read my article and used my information to win. Kudos to you for reading the article and putting that information to use. I hope this encourages others to follow the advice in my article and win their cases, too.

Thanks for sharing that good news. I'm sure this was a good day for you.

Brian


StacyH 3 years ago

YEAH!!!! Congrats. Brian you are a life saver! Now hopefully the good luck will pass on to me. I havent received a court date yet sending in my offer request for production tomorrow. I believe after this process I should be able to become a certified lawyer :) So I have a question. If you request for production and if they are not able to substantiate the request or prove that they have a contract with you are you able to ask for a dismissal before it even goes to court? If so what is usually the outcome? Also, how are you able to find out if your debt has been charged off because a lot of these companies act like they are the orignal debt holder.


HalfwayGone profile image

HalfwayGone 3 years ago from Ohio

Stacy, obviously this page is Brian's baby but if it's credit card debt I would say call the original creditor and/or check your credit report. We all are allowed access to our credit report for free once a year. I found out in my case both ways. I called FIA (Bank of America) this month to try to pay on it and was told it was charged off. It also says that in my credit report.

I do have a not totally unrelated question and Brian I don't know if you know this or anyone else does or not. I was told today that you can tell from the "dunning letter" (the letter they send that says you have 30 days to dispute or request validation) whether the account has been sold to a junk debt buyer or whether they original creditor has simply assigned them the account to try to collect on. I received the letter from Hanna's office today and it just says it's RE: FIA CARD SERVICES, N.A. and says to contact their office to make arrangements to pay. At the bottom it says no attorney has reviewed the account but if I fail to contact them, the "above creditor" may consider additional remedies to recover the balance due.

If the account has been assigned to them rather than sold to them, that might make me a little more inclined to try to settle, although part of me still hates doing that since FIA wrote it off. I believe if it was "assigned to them" then they get a certain percentage of whatever they can collect.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Stacy,

Thanks for the compliments. I wish everybody won their cases, but I know that it is a lot of work, and some people may not follow through on all things necessary to win. Still, I am happy each time I hear another person has won their case.

Regarding your request for production, if the collection company cannot substantiate their claims, then the case is easily dismissed. Some try a last resort of filing an appeal to a higher court, which then means that you need a lawyer to get that quashed, and that means putting out a little money. But, any money spent at that level, if it comes to that, is certainly necessary and worth every penny. It puts a final end to it all. As for asking for a dismissal before the court session happens, you can ask, and they can refuse, or they can grant it, but it would require a lot of legal maneuvering that only a good lawyer would really be comfortable with. I would recommend researching what the laws are in your state with regard to doing this, and if it is permissible, there can't be any harm in doing so. My gut feeling is that you will be required to argue your case in the court. If the collection company can't comply with the request for production, they know their goose is cooked, and they should simply not appear...which failure to appear results in an automatic dismissal.

As for finding out if your debt has been charged off, there are many ways, some more complicated than others, but the simplest is this - if the company going after you is a collection company, chances are usually certain that your original debt was charged off. A lot of companies want you to think that they are acting at the direct instruction of your original creditor, but the chances of that being true are slim to none. There may be some rare instance where the original creditor has hired a company to collect, but that is extremely unlikely in most cases. If the collection company was hired by your original creditor, then the collection company would have your original signed contract and all of the amounts of every purchase, etc. The fact that they cannot produce these necessary items proves that they bought your debt after it was charged off.

Brian


mamagee 3 years ago

I love what you have posted..I have some questions....In your form letter to the court and to the Plaintiff..you wrote that it should state the name of your credit card company...mine is from the debt collection agency successor to the credit card company...do I write that?..also, the lawyer's information is wrong.. (I am also from Pa.) in his letter to me he stated that it was a Mastercard/Visa..it was not......I haven't been served yet but the papers were filed..I found out about it because I received two attorney letters asking me if I want them to represent me..I originally started reading about what to do because I was sent letters at the same time from two different collection agencies..one answered with a copy of a signed application and 3 months worth of statements for an account of several years...but then passed me on..I then kept being passed on, every time I would ask for validation...I have been passed to at least 5 different collection agencies and two attorneys ..they answered my request for validation with the same copy of a signed application and 3 months worth of statements...and then would pass me on to someone else..I asked the last attorney in Pittsburgh for complete documentation, how the total was calculated, and a request for documentation that he is legally allowed to collect the debt...which he didn't answer but filed in court...the co. he represents is Portfolio #15..any comments? what's next?


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear HalfwayGone,

As far as being able to tell from the letter whether or not the account was charged off by the original creditor, that would not be possible. Experian, or any other credit reporting agency, could tell you the status of the original account. Barring asking them, you can simply assume, and most likely be correct, that the original debt was charged off, especially if the company pursuing you is a collection company. Assigned does not mean that the original creditor had anything to do with the collection company that is coming after you. It is merely their attempt to mislead you into doing exactly what you were thinking of doing...paying them anything, anything at all. Because, once you pay them anything, you have entered into a contract with the collection company.

The fact that it says "RE: FIA..." simply means that this is the debt they bought. The wording that "no attorney has reviewed this account" again means nothing. Years ago, I used to work for a company that printed up threatening letters to delinquent accounts, and the letters were even signed by lawyers and sent out with law firms as the return addresses. Sadly, those letters never saw a human hand. The were printed by computers, the envelopes were addressed by machines, the letters were robo-signed, and they were designed to scare people into making payments. Those letters went out by the thousands daily, and it was part of my job to run the computer programs from start to finish that produced these letters, signatures and envelopes. Those letters were printed in large sheets, signed by robo-pen, cut and folded, inserted into the envelopes that were printed with phoney law firm addresses, the envelopes were sealed, stacked, sorted, stamped and mailed, and not once did a human hand do any of those actions. So, they have to look scary, that's the point, but reality is in most cases, it is all bluff.

Brian


e.m. 3 years ago

Dear Brian,

It is possible that I might need to deal with this kind of problems in the near future. I did some research on my own before I found your website, but I admit I was weak and scared just only thinking to the idea of talking to a debt collector on the phone and not knowing how to deal with th whole situation, and much more scared of the idea to be forced to go to the Court. But reading your article, the knowledge I got from it gave me so much power and I feel much stronger in front of those mean debt collectors.

I have for now only two questions:

1) Is it ok to read the 'answers' from my own notes while (and if) I will be in front of the judge? I feel that even that I will try to remember what to say without looking in my notes, the situation will be very emotional for me and I might be intimidated and not knowing what to say. What effect will this have on their patience, Judge's and lawyers' patience...OR is it a choice there at the Court, to fill out some answers to questions 'before' going in front of the Judge?!.

And 2) You said in your article:

"Here is the law:

“It further states that the debt collector cannot collect any amount of money that is not permitted by law or by the agreement.

Because there is no agreement between the collector and the alleged debtor, no collection can be sustained.” (Fair Debt Collection Practices Act)".

----

Well...I have the Fair Debt Collection Practices Act - Revised January 2009 - and i've read it few times, but i do NOT see/find these lines inthere. Can you, please, tell me on what page of the FDCPA can find these lines?!. Could it be on some other revised edition more recent, like 2010-2011-2012 ?!.

I might return sometimes with more questions, I suppose it is ok and I am not asking too much.

Thank you again for helping so many people in need.

Knowledge is POWER!

e.m.


StacyH 3 years ago

Freaking a little bit. The collectors that summons me to court actually have 6 years of all my individual statements but no signed contract. So to me it sounds like it might be hired by discover to collect. Thoughts?

Also, if a credit card company has charged it off and then a debt collector that bought the debt from the CC company puts it on your credit. ARe you able to fight it and make them show the orignal contract etc. to get it off your credit? Since they technically do not own it.


StacyH 3 years ago

Hi Brian-

So after a panic attack I checked my credit report and it looks like all my accounts that i was unable to pay have all been charged off. What is my next step? Just wait for the debt collectors to keep calling and bugging me and if any of them will take me to court? I havent seen any of them put anything on my report . Trying to figure out how this whole thing is legal because once the credit card company charges off the debt they get a tax write off to reduce their profit. Then they go around and have someone else sell it for more money even though this money has already been written off my the IRS. Just tooo interesting.


e.m. 3 years ago

Brian,

I am confused about the following aspects:

1) after debt being 'charged off ' by the original creditor, let's say that the original creditor sends you a 1099-C form at the end of the year and list the 'charged off ' debt amount as a 'gift' that must be considered as 'income' and be taxable.

Considering this scenario, if debt is considered an income and taxes will be paid for it - then is this debt amount forgoten by debt collectors?! - because, the way I'm thinking is: a debt amount cannot be considered both 'income' and then 'debt' afterwords. Any thoughts?

2) Also, if a debt collector agency comes to the Court with an contract/agreement that is very old [10-12 years old] and it has [let's say] my signature on - but this happened soooo long ago that I cannot really remember 'what' has happened back then [if i did sign or not, or if i just did a verbal agreement on the phone...!!!]....Then, because i am not sure - 'what' can I say there in Court in order to defend myself? How can I be sure that it is indeed my signature that i've signed with longtime ago, or it might be a 'fake' signature, one just they 'copied' and be put there just to look real ? i mean - how can i know if it is a scam or not? [it did NOT happen yet, but 'if' this will happen....].

Thank you.


e.m. 3 years ago

Brian,

Please, disregard my earlier question - but I found out what I was looking for, in FDCPA - and 'this' was what I was looking for: "...the debt collector cannot collect any amount of money that is not permitted by law or by the agreement.". I had to read many times all the document in order to find it. So, please, don't worry to answer my earlier question regarding this. Thank you.


HalfwayGone profile image

HalfwayGone 3 years ago from Ohio

I'll grant you one thing almost for sure Brian. That dunning letter never touched human hands, because there was no signature on it- not from Mr. Hanna, not from any of the other attorneys listed, not even from a law clerk or secretary.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear e.m.,

I've never heard of a creditor sending anyone a form 1099-C. Your debt being written off certainly would not be a "gift," and it would not be a donation on the part of the creditor. It would be highly unusual for your original creditor to even notify you that the debt had been charged off, so this scenario is not something I have ever heard of, and I doubt it would ever be possible. I can think of no scenario in which a debt being written off would become a taxable gift.

Regarding your question about a contract that was 10-12 years old, you need remember only one thing: if the debt was written off, and it has been more than 3-4 years (depending on your state) since any payments were made on the account, the statute of limitations comes into play, and the debt is uncollectible by anyone.

If you are asked in court if the signature on a contract was yours, and it was so many years ago that you cannot remember signing it, the burden of proof lies with the plaintiff, and the plaintiff has to prove that the contract was signed by you. The plaintiff is required to show everything that I listed in my article, including dates and amounts of all purchases ever made on that card.

When asked if this is your original signature and contract, simply repeat: "Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim."

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear e.m.,

Never worry about the patience of the lawyer for the plaintiff. Whether you are slow or fast, all that is important is that you have your legal turn to properly present your case and defend yourself. That is your legal right, so never let someone use antics in the courtroom to cause you discomfort. That ploy can be stopped real quick by appealing to the judge to call the lawyer into question. No lawyer likes having a judge admonish them on their behavior, so, if a lawyer is trying to hurry you up, simply say, "Your Honor, I must object to he behavior exhibited by the attorney for the plaintiff, and would kindly request your addressing this matter."

You should be allowed to read your responses, but some judges may be testy and can themselves be out of order, which can lead to a good attorney filing a complaint later. Judges are human beings, and they all have totally different moods, some good, some bad. Any lawyer can tell you about certain judges they hate. So, be prepared by knowing your answers by heart. That is your best insurance. You can glance down at your notes any time you wish, so even looking at them and reading them as if you are simply reciting can be something you do.

Know your notes. Prepare in advance, and re-read and re-read everything. You should be okay. Good luck to you.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

StacyH,

The fact that they have six years of statements does complicate things, but what if you had ten years of using the card? They can only go after what they can prove, and just having six years of statements is not enough to go after anything more than those six years. Having those statements is not all the proof they need. Remember, they have to show every purchase, every date of those purchases, and every item purchased, just for starters. They have to prove the amounts that they are trying to collect, then they have to prove ownership. Did you sign a contract with them to provide services like your original creditor? What gives them any right to this amount? Did you make any payments to them? Did you promise them anything? They have to prove that you owe "them" this money.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

StacyH,

Your next step is simply to wait for them to sue you. They can call all they want to. Either don't answer the phone, or simply take the call, wait for them to identify themselves, then tell them they have the wrong number and hang up. Typically, they will not identify themselves. They will try right off the bat trying to get information from you to use, such as asking if you are so and so living at such and such an address. Simply state, "I'm sorry, who did you say you are? What company are you with?" Of course, they will not identify themselves, and will go back to any tactic they can to get you to identify yourself as the right person and phone number, even getting your address confirmed. Simply tell them that they have dialed the wrong number and hang up. If they finally take you to court, read my article and follow the advice.

You said that you are still trying to figure out how all of what they do is legal, re-read my article. Not much of what they do is legal, but once they get you to make mistakes, you can be held legally liable for the debt. Crooked? Very!

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Glad you found it. I would not have written about it if it were not in the Fair Debt Collection Practices Act.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

HalfwayGone,

There you go. Our little class in finding out things we need to know to fight these blood suckers just keeps on giving.

Brian


LYD 3 years ago

E.M. in response to reading your answers in the court room in addition to what Brian said you should be fine. I had my trial yesterday, and I read mine answers, i even added some of the explanations below the answers Brian gave to proof to them I really understand what I am saying, which made it feel like I was teaching the lawyer what the law is. My case got dismissed. Please keep reciting the article and when you get there it will be a breeze, since this will allow you to be able to read and look up. What really helped me is I picked the answers that applied to my case and I focus on it. You can retype them in bold print and make your own headings, so once you are asked a question you can easily identify where you have to go on your paper and read from.They are more than likely to ask you about the signature. I was asked that question three times and I stated the answer Brian gave you three times. Their intention is to intimidate you. Please never say yes even if you think it looks like yours, because there is no proof that you have a contract with the debt collector. Then they are likely to say, do you have a contract with the original creditor?. With me I said I use to and immiediately added "but the acct has been charged off" Please review my post and look at some of my answers, it might be helpful. I wish you all the best!


e.m. 3 years ago

Brian, are these 'exact' words to be found in the FDCPA?:

"...Because there is no agreement between the collector and the alleged debtor, no collection can be sustained.” (Fair Debt Collection Practices Act).

Please, help me find it.


e.m. 3 years ago

Dear LYD,

I have read your post few times already, very good information there. I have few questions:

When you say: "a contract that was similar to the original contract' - does this mean that you had right that moment at the Court - an original creditor contract in your own hand, that you had at home in your persona files and brought it from home with you? OR the Plaintiff's lawyer there at the Court had an original creditor contract that 'looks' like a contract that you remember from the past???

Then - first - you said: "The lawyer for the plaintiff asked for a merit trial and there was a facilitator and this lawyer framed everything to look as if they had been legally assigned by the original creditor. He showed a contract that was similar to the original contract and I used the answer for no.1".

But later in your post, you said: "We came back to the court room. The lawyer for the plaintiff took the document that looked similar to my original contract and asked me if I had a contract with the original creditor and did I owe them money. My answer was “Yes, but you are not XYZ (original creditor), and according to XYZ the account was charged off."

There was 2 different opposit answers that you gave. Wouldn't have been better to stick with your 'answer No.1' ?!

It was the same lawyer when you answer these 2 questions ? Or different lawyers? I understant they were Plaintiff's lawyers, right?

Because, what I'm thinking is that if you said 'Yes' to an original creditor contract - this could become a problem 'even' that you continue with: 'BUT the debt was charged off'.

What means 'they dismissed the case'? does this mean that the debt collector does not have the right to come back to sue you again? is it dismissed 'for good'? OR - the debt collector is allowed to come back when he has more proof against you?.

Thank you. I am trying to clarify these things 'before' I will possibly encounter these situations, which can be very soon...possibly.

Just trying to understand...

I am not yet in this position, but I might be soon.


e.m. 3 years ago

LYD,

I am trying to get as much information 'now' before the big wind is coming, possibly. And, yes - I already have all the answers printed in big bold capital letters - so, I'm doing good for now. Thank you for your help. This website and all Brian's answers are so much help to me, I think Brian is doing an exceptional and incredible job here, with helping all of us who are in so much need of knowledge in order to protect ourselves against 'those' people.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear e.m.,

These words - “It further states that the debt collector cannot collect any amount of money that is not permitted by law or by the agreement.

Because there is no agreement between the collector and the alleged debtor, no collection can be sustained.” (Fair Debt Collection Practices Act) - are from a legal argument made by a professor of law regarding the intent of Paragraph 808 in the Fair Debt Collection Practices Act. It would be worth your time to read the entire act, because it is very enlightening.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Thank you, LYD. We're all in this together to help one another.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear e.m.,

I'll let LYD answer your questions for herself, but I will answer the question you asked about what happens when the case is dismissed. When the case is dismissed, the judge can either dismiss "with prejudice," which means the plaintiff can never bring you to court again, or the judge can dismiss "without prejudice," which means that the plaintiff can file an appeal. If the former, you are free forever from that debt collector; if the later, the plaintiff may or may not choose to file an appeal. If they choose to file an appeal, you most certainly want to retain an attorney to represent you at that higher level of court.

Brian


e.m. 3 years ago

Brian,

Is saying/accepting in front of the Judge or Plaintiff's lawyers that 'the debt was charged off ' considered a good defense, would this information help in my favor, in a lawsuit case? OR it can be considered that 'if you know that debt was 'charged off ' , then you unknowingly accept that debt belongs to you...?! and then debt collector will 'hang' on this and cosider it a 'verbal proof ' that they can use against you??....... OR debt collectors must 'always' bring written proof/documenttion to prove their case OR .....everything 'depends on the Judge's mood and beliefs'?!

I am trying to find out what is exactly or approximately okay to agree verbally and what not, in court.

Thank you again. It is the first time when I participate in a 'forum' and I am so happy to find your website. Besides my previous extensive research regarding this matter, your explanations and answers are exactly what I need. Thank you.


e.m. 3 years ago

Brian,

thank you for your answer and explanation re: case dismissed.

Can you ask the judge to dismiss it 'with prejudice' or 'without prejudice'? OR the judge will be the one to decide.

OR can you be let explain few things about your personal life hardships if you ask the judge permission to let you do this ?

OR - the case will be 'strictly' business...! and no room for such things.


e.m. 3 years ago

Bian,

I DID read the Fair Debt Collection Practices Act - few times - and any time I read it, I find a new meaning for words. So, yes, I agree that reading this Act gives you little more power in what you are facing regarding the debt collectors. I often open it and read again and again.

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear e.m.,

Regarding " saying/accepting in front of the Judge or Plaintiff's lawyers that 'the debt was charged off '", my personal opinion is that I would simply state that I am without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that deny generally and specifically Plaintiff’s claim. Now, that is my standard answer, however, every court situation is uniquely different in some way, and a person has to be ready to handle the situation as it materializes. But, I am never going to make it easy for the plaintiff. The plaintiff has the burden of proof to show that the debt is yours, that the debt amount is correct, and that the debt is verifiable by showing every purchase, every item purchased, and every date of every purchase. So, me personally, I would not give the plaintiff that pleasure of saying that I even recognize the account.

In Paragraph 808 of the Fair Debt Collection Practices Act, section 1 states - "A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(1.) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law."

Note, it says "unless such amount is expressly authorized by the agreement creating the debt or permitted by law." This means that the original creditor has to agree that the amount that the collector is trying to collect is authorized, or that this amount is permitted by law. What law gives the collector the right to own the debt? How did they arrive at that right? The debt collector is not the creditor. So, I would make the collector prove everything about the debt, then prove why they own it, and why they have a right to collect it.

You also asked, "...debt collectors must 'always' bring written proof/documentation to prove their case OR .....everything 'depends on the Judge's mood and beliefs'?!" The plaintiff must prove their case, and they must do so with documentation, which documentation is highly unlikely to exist. And while a judge is human and prone to moods, the one thing they all have to do is uphold the law, and the law does not give the plaintiff the right to say you owe them money without proving their case...and in most cases, they cannot.

You said, "I am trying to find out what is exactly or approximately okay to agree verbally and what not, in court." Agree to nothing that is not proven. Demand proof. That is your right.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear e.m.,

Personal hardships will usually have little bearing in the court. The only time I would refer to them is if a judgement was granted against you and you then wanted to explain to the judge your need for leniency in repaying the amount granted.

Other than that, when you are denying the plaintiff his or her ability to prove the debt and their ownership of alleged debt, there is no need for hardship stories.

Brian


e.m. 3 years ago

Brian,

Re: Request of Production:

I am reading the 'Request for Production' form - and what i see is that no request is exactly directed to the relationship between Defendant and Debt collector Co.

I am trying to find out 'why' is that the request of production that is directed to the debt collection co. - does not have a much stronger language when talking about 'credit application' and 'contract' signed by Defendant with them? would be better to emphasize that it is about 'credit application' and 'contract' signed by the Defendant - between the Defendant and the debt collection co?.

Because, it is possible that the debt collection ag. can bring credit application, contract, statements - all from previous creditor only.

But i believe that what would be important is that if debt collectors have all the above [credit application, contract, statement, etc.] for the period of time starting with the day when they supposedly became owners of the debt.

What is your comment on this?

And...if you don't ask exactly what they must bring, then they can bring only those old papers that belong to the preious creditor [s].

Thank you again - and sorry for bugging you with all kind of questions. Just trying to understand everything, better...

e.m.


e.m. 3 years ago

Brian,

Re: Request of Production - continuation:

'I understand' that if i ask debt collection co. to produce documdents - and by the general question to do so, they anyway can NOT produce any contract or documents between them and me.

But - 'why' not asking them, directly, the question if they have any documents signed between me and them? this would clarify most case, isn't it?

e.m.


e.m. 3 years ago

Brian,

You told me in one of your answers to my questions:

'The plaintiff has the burden of proof to show that the debt is yours, that the debt amount is correct, and that the debt is verifiable by showing every purchase, every item purchased, and every date of every purchase.'

But let's say that the debt collector will bring all these documents in court, documents that prove the connection between me and the original/previous creditor. These doc. exist, and maybe it's easy sometimes for debt collectors to find and have tem.

But these documents are only proof of my relationship with my previous original creditor. These doc. are NOT proof of my relation between me and debt collector, nor that I owe the debt to the debt collector.

With these being said - I do not understand 'why' these documents, statements, etc. from previous creditor are so important in deciding the relation between me and the debt collector [in my opinion, these doc are NOT important - but only prove that debt collector got somehow or has these papers in his possession].

So, I'm asking myself many times 'why' are debt collectors still winning cases in court? even the 'validation' of debt from debt collectors does not ask for a signed contract between debt collector and consumer.

Everything is so confusing!

I realize that ultimately, the 'statute of limitation' is the only one that can stop a debt collector winning, and also

the denial that you had/have a business relationship with the debt collector.

This being said - I think that all this should imply a much simpler process of proving 'who' and 'what' everyone did in relation with the particular debt.

And the most important thing to prove is to prove there is NO business relationship between you and the debt collector.

I am just trying to understand and untangle the complicated ways of laws...

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear e.m.,

What you are asking me is stated in my article. The debt collector has no right to your debt. The request for production is just one of several defenses, not the only one. All of the steps in my article should be followed, because they show step by step why the case should be dismissed. The mistake you are making is that you keep focusing on just one step and wondering why that is supposed to make it all go away. For example, you keep focusing on the request for production, as if the fact that they cannot produce the required documents is proof that you do not owe the debt to them. No, the request for production is one step of several that you use to finally get the entire case thrown out. The request for production is strong enough in and of itself to win the case in most instances, but the other steps I outlined in my article are all equally important. You want to use them all.

Re-read my article and look at the reason each step gives for why the debt collector does not own your debt. It is not one step but several, and you want to utilize all of those steps in your defense.

I hope this makes things a little clearer for you now.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear mamagee,

In your form letter, you write the name of the company that is taking you to court. Usually, the debt collection company uses any of two names, but whatever they are using, that is what you want to put there.

The fact that the lawyer filing the case has listed it as a different credit card company, i.e., MasterCard/Visa, is just one more reason to dismiss the case.

Several things are clear from the Fair Debt Collection Practices Act, the person filing against you had better be a legitimate lawyer, and the firm pursuing it had better be a law firm if they have law firm written anywhere on their letterhead. If the firm representing the collection presents themselves as a law firm, and they turn out to be anything but, that is grounds for a lawsuit.

The fact that you have been contacted by lawyers wanting to represent you would suggest that the case has already been filed in court, and you will be receiving your summons in the mail soon. My best advice is to see what these lawyers who are contacting you would charge, and if you can afford them, use them. That is the fastest and most complete way to end this ordeal. However, if you cannot afford an attorney, then definitely follow the steps in my article and get the request for production out there to the company that files the suit. If they have filed in court, it is going to go to court, but you can win if you follow all of the steps I outlined in my article. It sounds like you have a good case, and you should win, so do your homework and prepare for the battle that is ahead. The mere fact that you file a request for production is going to send them running. And as I always say, if you can afford an attorney, by all means use their services. It really is worth every penny.

Good luck to you and best wishes,

Brian

P.S. Sorry about the delay in answering your question. I missed this one when I was reading all the others that were posted that day.


e.m. 3 years ago

Brian,

I already read and re-read your article, and I already wrote 'all' your answers - each of them on a separate page, in bold capital letters. I totally agree with you, in everything you are saying.

I just feel that the Law is not made equally fair for the particular aspect of business relationship between consumer and debt collector co. The Law does not ask for a fair validation from the part of debt collector.

Everything in the validation process from debt collectors relates only to the relation between consumer and previous creditor[s]. It is nothing said about 'signed contract' between consumer and debt collector'.

It happened that I found online this 'F.T.C.' - Collecting debt: challenges of change. A workshop Report - February 2009 [the same year with Revised 2009 FDCPA]:

http://www.ftc.gov/bcp/workshops/debtcollection/dc...

and nowhere during all that workshop it is said about a 'signed contract between consumer and debt collecting co.' - not even as a verifiable measure of validation in the future. All things said there focus more and more on how to give more power to debt collectors.

There are more things explained there in detail - at that workshop, about how things work in debt collection practice. It's interesting most of it - especially pages like 22-24.

Anyway, I am just said that many people do not know the answers to this problem, and debt collectors has a big advantage because of this. I hope that many people will find your website and read all this important stuff you put here.

Thank you.

e.m.


LYD 3 years ago

TO E.M.

E.M to answer your question. I did not take my original creditor’s contract to court, since I did not want to prove anything on the document they presented, This is because it is their responsibility to prove I owe them. The fact is if they have not proved you have an agreement with them (debt collector) then what shows the contract they have is genuine. Is just like anybody getting hold or even stealing an individual’s past contract and claiming they are part of the contract and demanding payment even though they have not proven they are a party to the contract. In reference to using (answer one) the lawyer wanted me to confirm that the paper he had was the contract I signed with the original creditor and that was my signature.

In reference to responding “yes I had a contract with my original creditor” I had to answer because when I received my summons they included that in the pleadings, a contract that looked like that of the original. So when the question was asked in court if I do have a contract with the original creditor. I said “yes I used to but the account was charged off”. Also the judge wanted me to answer the question. So indirectly, I am saying I don’t owe them anymore. Bear in mind I never even glanced at the plaintiff’s document, even though he brought the paper right to my face asking me to read it. I made him aware I was not going to look at it because I did not have enough info. to determine if the document he was holding was a real copy or a fake one and also because he was not my original creditor. In reference to if there were two lawyers, it was the same lawyer and it was the plaintiff’s lawyer. I hope this helps.


mamagee 3 years ago

Thank you so much for your help..I am starting to sleep at night..I think I have a better handle on this ...I still haven't been served...the case was filed on the 7th...I don't have any idea whether I should go ahead and respond or wait to be served...does the fact that you haven't been served figure into the timeline of when you must respond by?..the attorneys contacting me are debt relief attorneys...are they the kind I need?

Thanks

mamagee


e.m. 3 years ago

To: LYD

Thank you for your explanations. I still would like to know if at the end of trial - the judge or the clerk told you 'what' kind of 'dismissal' was for your case?! do you know it right away when trial is over, or you need to find this out on your own?

As you know, there are 2 kind of 'dismiss': 'dismiss with prejudice' and 'dismiss without prejudice'. In the first one, the Plaintiff can never bring you back to court. In the second one, Plaintiff can file an 'appeal'.

Thank you.

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear mamagee,

Glad to know that you are sleeping better. Once you realize that you have rights, and that the collection company is trying to run over those rights, you get a new perspective on things.

With regard to when to respond, you simply want to wait until you have been served. That is when the timeline starts.

Yes, debt relief attorneys who have been contacting you are exactly the ones you want to speak with. Pick the one with the lowest rate, because this is an easy win for them. I would not wait to contact them and get the ball rolling. The more time they have, the better for you.

Good luck to you,

Brian


soument 3 years ago

my hearing is today, supposed to be taking place as I type this. I'm overseas ; both my request for production as well as a letter re-iterating that I'm outside the US have been officially posted on the page detailing my case on the Magistrate Court's website, as well as a statement using some of your arguments. There is an entry dated yesterday which says Judge's Directive, and it was very vague, simply says "leave on calendar". I'm trying to find out what it means. I have no idea if the plaintiff attorney has shown up today ; I'm hoping that if the attorney does show up, that my submissions to the court (including Motion to Dismiss) will be acknowledged.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear soument,

Yours is an interesting situation. "Leave on calendar" means just that, the hearing will be held according to the calendar. I don't know how this will go, since there are too many variables, but the judge has a certain amount of leeway to dismiss or continue this case. The fact that you are not there to defend yourself due to being out of the country, and the fact that they are going forward, all of this is intriguing. Let me know how it all turns out.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

Thanks for supplying that link to the FTC's workshop. Very interesting read, and I recommend everyone read it. It does reiterate that the consumer has rights, and that the consumer can sue collection companies that violate certain laws regarding how they can operate. This is why I recommend seeing a professional attorney. I noticed at the top of this page there is an ad from some company that claims it can sue collection companies for you. I haven't clicked on it, but you might want to see what they are up to.

The collection racket is big money, so it pays to know your rights.

Brian


soument 3 years ago

now it says this on the website, entry today : PENDING SERVICE ON THE DEFENDANT, with entry labeled as "check to inactive"


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

soument,

"Pending service on the defendant" should mean that the case cannot go forward without your being served notice, but to be positive as to what it legally means, I would consult with an attorney. You should be able to call the court and ask one of the clerks what it means.

Brian


soument 3 years ago

I forgot to mention, there's also an entry underneath that which says "location-pending" . I will be outside the country until at least late March, and regardless, I do not live at the address to which the court summons was delivered. The case was filed Dec 3. As of Jan 16, I have never seen the summons, never got a chance to read it, and I argued "insufficiency of process" in two different letters. The way I look at it, the suit brought against me is BS, bordering on illegal, and it's the attorney/debt collection company that put the outdated/incorrect address under my name and on the court filing. By doing so, for all practical purposes they violated the Fair Debt Collection Act (informing third parties), because obviously if a cop shows up at my brother's house, then he, his wife, relatives, will find out about my personal business; my brother obviously read the letter from the debt collector after the cop showed up, and sent me a concerned email. I know for a fact that at least one person outside the family even knows about the lawsuit. Anyway, I asked for production and filed motion to dismiss. Also, i'm curious to see if there's any entry on the court website based on activity from the plaintiff attorney. So far, since the Dec 3rd filing, the only "movement" whatsoever on the case has been from ME.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

soument,

In my honest opinion, there seems to be some illegal activities on the part of the collection company, and I really would advise speaking with an attorney about their actions.

In the meantime, I would be calling the clerk of the court to find out what is going on.

Brian


soument 3 years ago

I will take your advice... I agree ; the whole lawsuit is an elaborate bluff.. there is no contract between myself and the collection company nor is there any current/active contract between myself and the original creditor (bank) nor is there any evidence that the bank asked someone to sue me. They charged-off a balance attached to my name, in 2008, so legally they couldn't even sue if they wanted to, and it's outside statute of limitations. The thing is, they used the name of the bank on the official court filing, and listed them as the "plaintiff". This in and of itself is factually incorrect (if not downright fraudulent) information. I've tried to hint at that in my statements to the court, but I don't want to come across as a condescending or disrespectful to the judge, by saying, " their doing something illegal, and lying ". Another weird thing: There was one judge listed as presiding over the case.. there's another judge's name listed under "Judge's Directive- leave on calendar", and now there's a third judge's name under "check to inactive / pending service on the defendant ". lol, I don't understand why 3 different judges are involved. I'll look into consulting with an attorney asap... it's up to the plaintiff attorney to mark down a correct location to which to serve me the suit. As far as I know I'm not required to "turn myself in" so to speak ; this is not a criminal case...


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

soument,

I agree with everything you've written. A good attorney should see a reason to file suit against this collection company, at least as far as I see it. There just seems to be so many ways they appear to be violating the Fair Debt Collection Practices Act.

Brian


mamagee 3 years ago

I just spoke to an attorney..she said that the debt was sold to the attorney and that he doesn't have to prove everything..just the balances and interest...which he sent ...she said to be proactive and go to the court and get the records to show the judge that I am proactive and file and show up...she said to bring copies of my pay stubs to show the court and do a work out either with the attorney or the judge ..but it has to end up in front of the judge and be court sanctioned. I went over the points on this page but she said that he has the right to collect the debt. What do you think?


LYD 3 years ago

TO E.M

You will know the type of dismiss immediately after trial. I got the dismiss without prejudice. However the confirmation letter I received said "Case dismissed"


Mike045 3 years ago

Well Brian,

I prepared my notes last night and had number one on the list memorized backwards and forwards. I really understand the premise of the arguments well at this point. After I arrived in small claims court, they called my name and I checked in. The lady asked if I agree or deny the claim for monies. I read #1. She said I would be in with the Commissioner shortly. Thirty minutes later they call me into a separate room and the lawyers follow. As we sit down I am ready to deliver my case like nobody's business. The Commissioner reviews the outcome of the previous meeting and asks if I have received the paperwork/validation I requested. I said "No!" The Commissioner went on to state that it had been 60 days since the request and then dismissed the case without prejudice. It kind of pissed me off. The statute of limitations in our state is 6 years. So they can still come back at me, but they have no case! Thanks for helping us fight the good fight. Now I have to figure out how to clear their claim from my credit rating. In summation: I win!


soument 3 years ago

I'm seriously considering suing the debt collection company, especially since they maliciously filed the suit right before Christmas ; I consider that malicious, and NOT a coincidence (why didn't they wait until late December?). My senior citizen parents were put under stress, and found out about the lawsuit right before taking an international trip. Obviously I personally felt anxiety and lost sleep over the whole thing. It really pisses me off, especially since the attorney refused to acknowledge my communication or provide anything I asked for including itemized list explaining the balance. I'm awaiting a message from the clerk, explaining the "pending service on the defendant" website entry. I'm still wondering why three different judges have been involved with my case...


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

soument,

As I said before, I would definitely contact a lawyer and ask about what chances you have of filing a case against the collection company. If you don't hear what you want, don't be afraid to ask more than one attorney the same question. There are varying degrees of skill when it comes to lawyers, and also varying degrees of enthusiasm. Some lawyers will pass on a case, because it is too much work on their part. I would think that there has to be a lawyer somewhere who sees merit in your case and is willing to pursue all aspects of it. Don't give up. Go for the full win.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

mamagee,

I would find another lawyer. Sounds to me like you found a lawyer that either works for collection companies, or is not to well versed in the Fair Debt Collection Practices Act. I could not disagree with that attorney more.

It is certainly your right to follow that attorney's advice, but before you do, I would at least try to find an attorney who deals and specializes in debt and bankruptcy relief, and that is the only kind of attorney I would be discussing this with. I personally think you got bad advice. It is your right to go with it, but I hope you get another opinion, and this time, form an attorney who specializes in the areas I listed.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Mike045,

Congratulations! You did very well, and you won your case...at this level. Now, they can either leave you alone, permanently, or they can file an appeal and harass you a little longer. If they do, then obtain the services of an attorney and knock it out of the park. Once the attorney finishes with them, they are gone for good. If they file an appeal, they are hoping that you cannot afford an attorney and will lose in the higher court. If it comes to that, you most certainly need an attorney, because at that level, the legal machinations are quite tricky, and you do not want to make a mistake. If they file, get an attorney. You'll be done with them for good.

Brian


soument 3 years ago

Possible good news... January 17 court website entry : "dismissed without prejudice" . Underneath that is another entry which says " LOCATION - DEAD FILE". The associated party for both entries was listed as the plaintiff attorney. I don't know if that means that she put her hands up and gave up, or that a judge simply gave the order to dismiss the case. The web entry doesn't explicitly state that it was an order from a judge. I'm not celebrating yet, because I think they might appeal. But the fact that I'm overseas and still have NOT received the court summons (six weeks after the case was filed !), makes my situation unique. Do you think it would be at all a good idea to send a letter to the debt collection company, explaining that I will countersue them if they pursue any further action against me? Or should I refrain from that ; I realize anything I say could backfire. Perhaps I'll pay an attorney to type up a politely threatening letter, in "lawyer-speak". Anyway, my self-confidence is a bit higher today, but I'm not assuming that I've officially won (yet) .


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

soument,

"Dismissed with prejudice" means that you won, that the judge has dismissed the case, and it also means that the plaintiff can file an appeal. They cannot wait forever, so you may still want to discuss this with an attorney to see what it all means in the state in which you were sued. If you find out that they have filed an appeal, then by all means get an attorney. Dismissed with prejudice is a good ending. Hopefully, this means they have given up. Here's hoping that this is exactly what has happened.

I love it when people who have read my article go into battle prepared and win their cases. That is one less person that the blood suckers have harmed.

Brian


soument 3 years ago

Thanks Brian.. your webpage was incredibly helpful... oddly, I kinda/sorta came up with similar arguments on my own, but the way you broke things down and organized the points and made it understandable to average folks.. was outstanding. My battle is possibly over, maybe there's another fight with an appeal from the bloodsucker, but I've at least inflicted a big gaping wound. I'll definitely keep you posted...


e.m. 3 years ago

Brian:

Is 'charged off' equal with 'written off' ?!

Is it possible that a bank would 'charge off' a debt amount, but the debt collection agency still maintains that 'the bank' is the 'current owner'?! .

I am only at the beginning of a possible soon starting battle for my rights. No summons for now, but maybe soon.

What I want to focus on is to prove when needed [in court, if needed] that the 'DEBT COLLECTOR' is not the one I owe and does not have any right to do any kind of business with me.

I have to tell you a little about my situation:

I have few unsecured debts - credit cards, the amounts were 'charged off' . Before I found this 'forum' I did this: after I received their first letters , I did send back [during 30 days] my letters asking them for 'validation' - and asking for a long list of documents ts. One debt collection ag. sent me back as proof of validaton: one page with no letterhead and not showing where is coming from - containing my personal information and bank/bank account informaion [original creditor] - with 'status: New Business' [paper seems coming from 'nowhere']. Plus a 'Bill of sale and assignment of assets' for a sale of a 'lot number' - lot ....., number of accounts.....balance....[NO numbers, all 'black out']. The bill says that the assignor absolutey sells, transfers, assigns, ....to.....assignee..[debt collection co] on an 'AS IS' and 'WITH ALL FAULTS' basis......etc. etc. The bill of sale is signed by assignors: the bank name, plus 2 other names: Sr.vice president, and vp of recovery. Again, this is a regular paper with no letterhead. Nothing else.

The second debt collection ag. sent me as 'validation' only a page of a statement from the bank, that's all. And this one came back after 60 days, though i was telling them in my letter that i want to receive it in no more than 30 days, otherwise they need to make correction to my credit report.

These are all the papers they got to send me for 'validation' of debt.

Also, almost at the same time right after requesting validation, I did send them, to each of them, letters of 'cease and desist contact', another letter to tell them i was not happy with their validation, and another letter telling them that my income and assets are 'collection proof' and 'judgment-proof' [which is the real truth]. Before doing research re debt collection practices and consumer rights, i was researching for Bankruptcy - so i know few things about 'state exemptions' and a little more. But [for different reasons] i decided to go the route of fighting debt collectors - instead of Bankruptcy.

My question is: what can i expect from now? i did not receive anything else from them. How long after their validation can I expect th receive some kind of paper to be called to court by them?. I think that now they can call me to court, thinking i'm not going to defend myself and i will miss the trial, and they will win by default - OR - they will not call me at all to court, thinking that not much can get from me, at least for now.

What do you think?

I knew generally these aspects of debt collection process and all the stress, but as someone said before here in this forum, you organized these ideas and made them very clear for anyone who read them. I feel strong now that I know all the information thanks to you.

Thank you again for your time you put into reading and answering to all of us. I really appreciate your effort.

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

Charged off and written off are the same thing. It means that the original creditor has ceased servicing the account and can no longer collect on it. Depending on your state, the statute of limitations begins to accrue, and once your state's time limit has been reached, the debt cannot be collected by anyone at all.

As for all of the papers you received back, you know from my article that there is an entire list of items that the collection company has to produce. If they have not done this, or they missed the deadlines, then they are in the position of having their case dismissed.

As for going to court, there is no way that the case can be held without your being notified by either certified mail, return receipt requested, or by hand delivery by the sheriff. The case is not over until you have been sued in court and the company demands summons to court. If they choose not to pursue, they can wait until the very end of the statute of limitations before deciding to sue you and go to court. It is a waiting game. So, while you wait, if you have not been summoned to court, if you have not been notified that you are being sued, simply do nothing. Don't answer any phone calls, don't respond to any contacts from the collection company other than a summons to court.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

soument,

I am always happy when one of my readers wins their case. Thanks for your many compliments, and here's hoping that it is all clear sailing from this day forward. Best of luck to you.

Brian


Eva 3 years ago

I love this page and will be coming back to really study it and see what i can use to help myself . But i do have a quick question for you. Do these strategies work in any state?? or would this information you have given us here work only in certain ones i Live in Oklahoma and I'm stressed to limit with Collection agency trying to collect from me and just got a letter stating that i own this or that it was something that came in regular mail addressed to me with limited information i don't even know what it is, and are you saying that we should not respond to letters or ask for validation till they sue us, or would it be better to do it now before it goes to court? any response would be appreciated as i have no idea where to go or how to search if i am able to use these ideas in Oklahoma ....Thank you in advance


mamagee 3 years ago

I spoke to 2 more attorneys..they all work with debt relief...they don't take cases unless the debt collector is abusive, so their work is free and they go after the collection companies...they all said to settle...I should go and get the paperwork from the courthouse and contact the attorney and settle....they said that the company did not harass me, sent me validation of my original application, plus 3 months of statements with the accrued interest..they said that's all the collection company needs...they said that the collection company does have the right to collect the assigned debt because they bought it from the original company and they own it legally. They don't have to provide my payment records, sales receipts, original sales slips. They don't have to prove ownership of the debt. Legally I am obligated to pay them. There doesn't have to be any contract between me and the debt collection company. I still haven't been served. I understand the points you are making here. I feel stuck. Do I gamble on your advice or go with these attorneys? HELP!


e.m. 3 years ago

mamagee:

It happened that I've read your last comment, and I hope it is ok to make a comment: I would go with what we've learned here at this website and from Brian's article: fight for your rights. Even they brought as proof all those documents, even so, there is no proof that there is a 'signed agreement' between you and the debt collector, or between you and the original creditor that validates that you agreed with what they all say, that you owe money to the debt collector. Re-read the information re: 'lack of privity' and 'repudiation'. In a settlement you will need to agree that you owe 'all the debt amount' to the debt collection agency....wouldn't this make you mad?!......Just try to fight....then, you'll see later what to do next. ...

I would FIGHT for my rights, that's the bottom line.


e.m. 3 years ago

Brian and everyone here:

The correct web address to that letter is like it shows here, you have to type 'all of it [http.........00015.pdf].

In case you want to read it and you cannot get to it, please let me know if you want to read it - and i will 'copy and paste' all the letter here. It is really interesting. I knew of 'repudiation' from your explanation in your article Brian, but i don't know 'why' - i misunderstood the meaning of 'what' an 'original creditor contract'' might be proof for. Even that an 'original contract from an original creditor' comes up somehow, the 'debt collection agency' is NOT SPECIFICALLY ASSIGNED in that original contract to collect debt from you. It is 'not' only about the debt collector signature on the original contract [which never happened], but PARTICULARLY 'the assignment of collecting the debt from you' AS A 'CLAUSE' IN THE ORIGINAL CONTRACT'.

But, again, it is sad to know that a validation of an 'original creditor contract with the customer' gives yet some power to debt collectors.

So, in order to read that letter from Federal Trade Commission, you need to type the 'whole' address:

http://www.ftc.gov/os/comments/debtcollectround table2/544507-00015.pdf

e.m.


William 3 years ago

Does this work the same way with student loan defaulted debt? My student loan defaulted 3 weeks before I applied to the Obama student loan repayment plan and did not qualify. Since then I have been underemployed and struggling t0 make bill payments. I managed to make one payment to the student loan debt collection agency before I could no longer afford to maintain payments. As of 12/31/2013, my debt was picked up by a different collector and a letter was sent to me. I was trying to learn how to respond and what I'm elligible for since my FFEL loan did not qualify for the income-based or income-contingent repayment plan. What are my rights and do I respond to the defaulted student loan debt collector the same way?


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

William,

This is the first time someone has asked that question, whether or not this advice applies to student loan defaults. To be frank and honest, I don't know. When I wrote this article, I was dealing with a credit card situation concerning a debt that wasn't even mine. The best answer I can give you is to find an attorney who deals with debt relief and ask that attorney. Make sure they are versed in the applications of the Fair Debt Collection Practices Act.

I wish I could advise you better, but I have never thought of this application. If the student loan was written off, and it was past the statute of limitations, I would assume that it would fall into this category, but student loans may fall into a totally different world of law. So, best advice is seek the help of a good attorney.

Best wishes to you,

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Eva,

Yes, these laws apply in all states. Some things may vary, such as statute of limitations. In some states, the limit is four years, and in some states, it is three years. But, for the most part, all of these strategies are relevant regardless of the state.

If and when you receive a certified letter stating that you are being sued in court, then you want to put all of these strategies into play. Until then, I would simply avoid any contact with any collection company. Contact with them can lead to making statements that can be used against you, so avoid them by all means.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

mamagee,

I am not an attorney, so if you are being told by an attorney to settle with the collection company, then it is your call. Me, personally? They would have to take me to court, and I would fight them all the way. That's what I did, and that is how I won. But, that is me. You have to make this decision on your own. Once you offer to settle, you have entered into a binding contract that means they then own the debt. Regardless of what these two other attorneys told you, I would try to find an attorney who does take cases, who charges for handling them, and find out what that attorney's opinion is. I personally feel that these two attorneys gave that opinion, because it does not affect them, they don't make any money on the case. Who knows? All I can say is the decision to follow their advice is yours to make, but remember, once you agree to settle with the collection company, there is no turning back. You will owe them the amount they claim.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

I would fight for my rights. too, but each person has to make the decision that feels right for them. I wish mamagee the best.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

Great information, and thanks for sharing.

Brian


e.m. 3 years ago

William:

You will find some good information here:

http://studentaid.ed.gov/repay-loans/default/colle...

http://www.ocap.org/ryl/discharge_forgiveness.shtm...

School loans and IRS taxes are very strict.

They are the only debt that Bankruptcies do not discharge. I suppose there are more severe rules for them.Until they are nor discharged for some reasons [you have to check this one] - then I think it is better to postpone them due to financial hardship or some other reason.

Forbearrance, deferrment...these are the terms you need to look for. Maybe you will find some helpful information at these websites. Good luck!

e.m.


e.m. 3 years ago

William:

It seems that the debt collection process for student loans are not far different than regular debt collections. Only that they have different departments for complaints and maybe ['maybe!'] the debt collectors use more professionalism [hope!].

Here it is another link where you will find extra information directly related to school loans in default and even has a list with collection agencies that Dept. of Edu. uses to have contract with for collection.

http://www.studentloanborrowerassistance.org/colle...

Again, it seems that it is the same process we all know. Let's hope their manners will be much better.

Also, I am not sure if someone can fight against this kind of debt collectors with the usual fight for consumer rights [which we all talk about in this forum] . I do not know if the money they collect will go to really pay the school loan....I know so that to pay a school loan is 'a must' and is very serious. But...again...i do not know 'how serious' is 'after' it gets in the debt collectors' hands. I just know that the gov. can garnish even social security pensions for school loans defaults and for irs taxes not paid.

I think you should make a list with all your questions and try to find answers by calling the Dept. of Education or other places - just to have an image of what you have to deal with.

e.m.


e.m. 3 years ago

Brian:

I have a question: let's suppose that a lawsuit ended with final decision 'dismiss with prejudice'. So, the debt collector can NOT sue me again. But - what if the present debt collector will sell the debt as usually they do - to another debt collector: is it possible that the new debt collector can sue me again?!

Thank you.

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

Once a case is dismissed with prejudice, it is over.

Brian


StacyH 3 years ago

Anyone know how far debt collectors can go. I have heard that they can contact family members, neighbors etc. I actually had one call my cell phone and then my home phone that i just recently signed up for. I dont even know the home number. I have avoided them but Im wondering if I should tell them not to call me or if it will bring the court proceedings faster.

Also, when i was served with a summons for $5k from a debt collector for my discover. I actually had a police officer serve me with the papers. I would much rather get a certified letter. Is it normal for police officers to serve you? Also, before I knew about you. I talked with them and they told me that they would have to contact discover to see if they would accept an offer. Which now I know is a lie.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

StacyH,

Debt collectors cannot contact anyone else but you. They cannot call your place of employment, they cannot contact neighbors and relatives, and if they send you any correspondence in the mail, the words "Collection Company," or anything like that, cannot be on the outside of the envelope.

You can be served by the sheriff, or you can be served by certified mail, both are legal.

You should know by now not to discuss anything with the collection company. Let them take you to court.

Brian


Mike045 3 years ago

Brian,

Now that I won, I'm still curious about round 2. You had mentioned that when this happened to you, they came back for appeals court and you had to get lawyer. Can you give us an outline of the defense your lawyer made for you to get the case tossed? I would definitely get a lawyer, but would really like to know what your lawyer did (phone calls, letters, court appearance)?

Thanks,

Mike


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Mike045,

When I went to court, because I did what I wrote about in my article, the "law firm" decided not to show up in court, so the judge dismissed the case without prejudice. I asked him if he would please dismiss it with prejudice, and he said that he was not able to. Not sure why, but, that's the way things go sometimes. At any rate, it did not take that firm long to launch their final attempt to win by filing an appeal. They were slick enough to know that they could not win at the first level, because of all that I had done, but, they also knew the old adage, "A man who acts as his own lawyer has a fool for a client." If a person has not gone to law school, the next level in this court case can get very tricky, and the collection company is counting on two things: you will represent yourself, because you can't afford a lawyer, and you will screw up big time when the wheels of legal technicalities begin to turn. I knew that, in spite of all my legal training, I did not want to put myself through all of the legal work that this second level would cost me. I had been contacted by several lawyers before the first case, so I chose one who was close by and had a meeting with him. After the initial meeting, I was convinced that he was the man for the appeals process.

What convinced me to work with him? He knew who the lawyer was who was filing the case against me, knew of the collection company he represented, and had won against this attorney many times. That was good enough for me. What did he do? He simply called that attorney and told him that he would be representing me. It all ended there. The attorney for the collection company knew they had no case, that they were trying to bluff their way through, win by subterfuge in the appeals process, and that if I knew my rights and plead properly at that level, I would win. Once they saw that I had an attorney representing me at the appeals level, they knew it could go from bad to worse for them if they decided to push it. They threw in the towel, and my case was permanently gone.

Hope this has been of some help to you.

Brian


e.m. 3 years ago

Brian,

Re: Signature: I found this explanation regarding the 'signature' on an original creditor contract.:

"Consumer credit card applications and agreements no longer require signatures. Most consumers apply for and fill out their credit applications via telephone or on-line eliminating the need for formal signatures or marks. The contract is created by the issuance of a credit card and contract to a cardholder which the cardholder accepts each time he uses the cared. The card holder's use of the card, not his signature on a contract or application, accesses the credit and creates the obligation to repay the credit used plus contractual interest and fees.[Federal Trade Commission' - Protecting consumers in debt collection litigation – Roundtable].

Question: So, does this mean that a single statement will be enough as proof that debt belongs to the Defendant?! [and no signed original contract needed to be presented by the Plaintiff?!].

[Of course, I know...we have to use all the 'steps' of answers for defense....this is only one, but I am just curious as how this would be considered in court!].

Re: 2.) b) Plaintiff’s claim demands money for an alleged debt for which no proof of said debt, nor proof of ownership of said debt, has been verified and exhibited.

Question: Is 'bill of sale and assignment of assets' considered a 'proof of ownership? [the collection company's name is in the text bill as 'Assignee' – but the bill is signed only by Assignor [2 assignors' signatures – but NO Assignee's signature on bill. Also, NO letterhead].

-----

Re: SS# is easy to be found by collection companies, in fact the creditor gives the SS# when debt is sold. But the FTC says that the 'creditor' is the only one that should get this private information. The collection co. is NOT a creditor. Would this be a defense argument?And how can it be used?

On the other hand, 'thanks to the original creditors' - the collection company have our SS# - which is invasion of privacy because was done without our permission, and therefore – we, consumers suffer from verbal and mental abuse from the part of collectors [generally speaking].

Question: Can we consumers use 'invasion of privacy', somehow, in any context of any of the arguments for defense, in court? - and if 'yes' how can we do this?.

Thank you.

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

Yes, a contract, as I mentioned before, can be entered into verbally. This is why the credit card company, when entering into a contract over the phone, tells the customer that they are recording this part of the conversation. They then get your permission to record this part of the conversation, and they record your acceptance. After this, once you use the card to make a purchase, you have completed the deal, and you are now bound to their terms. Nonetheless, the law still requires that the collection company prove that you entered into an agreement with the collection company, and that they prove that you entered into an agreement with the original creditor. The day may come when some smart collector will go the route of getting the original signed contract, or getting the original recorded conversation, but the chances of that happening are slim to none.

In my personal opinion, I don't think the bill of sale and assignment of assets is going to hold sufficient weight to prove anything in court. As for their getting your social security number and then using that to invade your privacy, that is an interesting thought, but I am not sure that there isn't some legal way that they could obtain that information. Nonetheless, it is worth pursuing. Could be worth including in your arguments.

Brian


e.m. 3 years ago

Brian,

Are court procedures different between states?

Generally, in court, while in front of the judge, and the debt collection representatives are in the same room - does defendant answer one by one to their questions, or any certain order? or the defendant is given a 'one time to talk and defend himself'?. Or each: the defendant and collection co. - is given an only one time to talk...

And - does the defendant need to give a file with copies of his/her answers - to the judge and to the collection co. right there in court, before the trial starts ?.

Thank you.

e.m


David Rawling 3 years ago

Hi There,

Would you be able to tell me if this applies for UNITED KINGDOM as well? as a credit card company sold my information to a US based company and they have passed my information to a UK based company which passed my information to a debt recovery agency?

would you be able to send me an e-mail on frosty26@hotmail.co.uk

thank you great info


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear David Rawling,

Your case sounds complicated due to the fact that the laws in my article are based in U.S. law. I am not familiar enough with U.K. law to say what would and would not apply in your country. For that, I am afraid you'll have to seek legal help in the U.K. You might want to research the laws in your country as pertains to this question, as well. My sincerest wish is that there are laws in your country that give you the same rights we have here.

Good luck to you. Let us know what you find out.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

Court procedure should be the same, regardless of the state in which you reside. The order of questions generally allows for the plaintiff to lay out their claims, offer proofs for their claims, and then the court allows the defendant to rebut and offer proofs. This can go back and forth as necessary.

Anything either side is offering as proof needs to be presented to the court for the other side to examine.

Brian


e.m. 3 years ago

Brian,

It is possible [for sure] that in a situation of a court trial, a first question for the defendant is: 'did you have an account with the previous/original creditor' [before the collection agency came along].

It is possible that many times the answer is YES - but the answer cannot stop here with only 'yes'.

So, what would be the right answer?!

I remember that someone here at this forum said that gave the following answer:

'yes, BUT the account was charged off'.

OR - i'm thinking of this answer:

'yes, I had accounts with many banks and probably with this creditor too'.

OR...?! what else could be a good answer, not implicating too much the defendant, and NOT answering only YES - because this will lead to a 'no win' for defendant.

Just asking your opinion.

Thank you.

e.m.


e.m. 3 years ago

David Rawling:

I just wanted to help. I found online the legal 'act' that is the same with our 'Fair Debt Collection Practices Act' here in the USA:

yours in UK is called: 'Office of Fair Trade' - Debt Collection.

http://www.debtwizard.com/images/stories/files/oft...

I've read some parts and it seems almost the same as here.

But for sure there are some differences. So, as I said earlier, it will be a good help for you to read Brian's article very carefully and take some advices and answers samples, to use them in case you need them.

I hope it helps.

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

Regarding your question of what to say if the plaintiff's attorney asks, "Did you have an account with the original creditor?", it really boils down to the judge and whether or not the judge inserts himself. The judge may sit quietly and allow the entire process to play out without much interference, or the judge may ask you to answer the question, even rephrase the question himself. So, my best thought is this, I would simply say that I don't recall this account. Then, I would recite my standard answer: "Your Honor, at this time, Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim." Make the plaintiff prove everything. I am not about to make it easy for the plaintiff's attorney.

Brian


e.m. 3 years ago

Brian,

Please, remove my previous posts which include 'copy and paste' web links. I am sorry, but I did not know that this is not allowed here at this forum. From now on - I will try to keep it simple.

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

Who said that you cannot post those links here? I thought they were helpful.

Brian


shellseeker 3 years ago

I was told when I went to a pretrial hearing that Federal rules applied to store credit card which was sold to a notorious debt collection company. (This is Florida). There were 20+ people scheduled at the same hour in the same court with the same judge. First thing they did was assign us to a mediator. I asked immediately when I sat down with mediator that I wanted to see my contract, that I never entered into a contract with the debt collection company and that I disputed the amount they were saying I owed. The judge said that he would give more time to collection company "to come up the the original contract". The attorney for the CCompany that it was absurd and said they didn't have it. The mediator told the attorney I had a right to see the original contract and "docs." Now it goes again in less than 2 months. Judge said I could be responsible for next mediation charge plus court costs. Since I have already asked for contract and this will be "revisited" in court, I wonder if it would behoove me to send in your "Request for Production." I just wish I'd read your blog before going the FIRST time! I was happy I did know a little about my legal rights to request confirmation of my contract. Thanks for your help


shellseeker 3 years ago

Judge also said the "burden of proof" was not as high in civil court as it is in criminal court.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Shellseeker,

I'm glad my article was of some help to you. It sounds like you did the right thing, because you angered the plaintiff's attorney. Good for you! Now that the judge has given the collection company more time to come up with the original contract, you should file the request for production. If you didn't rattle their cage enough when you made your first demands, you certainly will when they receive that document. The burden of proof is not as high in civil court as it is in criminal court, but it is still high enough that the collection company has to produce those documents. Without them, their goose is cooked.

As for being liable for court costs, yes, possibly, if you lost, but I don't think that is going to happen. Keep up the good work. Let us all know how it turns out for you.

Best wishes,

Brian


shellseeker 3 years ago

Your articles were a GREAT help! I just regret I didn't see it prior to the pretrail court. In mediation and with the judge, I didn't dispute that I owed anything. I just disputed the amount. I had four credit cards for almost 30 years and paid faithfully, paying off, many times until about a year and a half ago. We are in a lot of financial hardship right now due to reduction in my husband's income (I don't earn money, although "work" very hard with our child), death of a family member, and our mortgage insurance and health insurance premium costs going out the roof, as well as two serious surgeries I had. We are struggling to pay our mortgage and utilities, as well as put some food on the table. This is just the first of many of these I fear coming down the pike. My husband thinks we should just file bankrupcy but we really can't afford an attorney


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Shellseeker,

Thank you once again for those kind comments. You are not alone in your financial predicament, and this is one of the reasons I am so disgusted with these blood suckers who come along and make worse a situation that is already extremely difficult and painful for many Americans who find themselves in dire straits through no fault of their own. These collection companies are driving people into horrible situations, and they are ruining the economy. So, every time one of my readers sends them packing, I cheer.

Regarding filing for bankruptcy, that does put all of your creditors out of the picture permanently, and the rate an attorney charges will vary from law firm to law firm. You should be able to find someone who will do it for less that $1,000. If you can't make that happen, then at least put up an educated fight against the collection companies.

It's a tough battle, and I sympathize with you in your family's current financial situation. I hope that you can find a bankruptcy attorney to help you out of this mess. No matter what, they can't put you in jail for debt, so there is a better future awaiting those who persevere. Hang in there. Better days are coming.

Brian


ShaneM 3 years ago

Wonderful website and thank you for providing all this information for us, there really is no other site where you can get this kind of help.

I have I question in regards to a debt collector that is trying to sue me or was in hopes I would have not responded to the questions. I have responded to them asking for validation. This letter by me was send to all the correct parties including court house. But the debt collector have not submitted any answer for my validation to court as of today and this would be now 40 days they did send me normal mail 5 days ago that I will not even acknowledge same generic information with out any proof of contract that I requested. My question is do I just wait for court day? or should I send another validation letter registered to the debt collector and also deliver it to court house would that all be in my favor ? or should I just wait for the court date?

Any help would be greatly appreciated and Thank you so much in advance.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear ShaneM,

Thank you for you compliments. Regarding your question, if you sent the request for production to the collection company, and you sent it by certified mail, return receipt requested, they are required to respond within the time limits. The fact that you sent a copy of the request for production to the court confirms for the court that you did what you needed to do. If the request was sent within the 30-day time limit from the time you were notified of the court date, and if they have not responded, then point this out in court. Chances are that once you sent that request for production, the collection company may have opted to not appear in court. If they do not show up, then the judge has to dismiss the case. However, unless he dismisses the case "with prejudice," the collection company could file an appeal. If they do this, then you definitely want to obtain the services of a lawyer to help you at that level, because the legal tricks they can pull at that level are more difficult to deal with if you don't have good legal help.

Good luck to you. Keep us posted on your progress.

Brian


hebar 3 years ago

Hello,

First I want to thank you for what you have done here.

We have not made payments to our credit cards for several months. we borrowed up to 30 grands. Husband got injured, workcomp didn't pay benefits so we could not support our family in the States, we moved somewhere cheaper. We are still trying to get on our feet. I called the credit card company to make a promise that we will pay back that money but they said your account is closed and sent to collection. Is there any advise I need to know before I contact them? We are out of country, not in UK or Canada. We are planning to come back once we get it together and we will pay them back. In the meanwhile what means do they have to come after us. Please help me sir.

thank you........


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Hebar,

The fact that your account has been closed and sent to collections means one of two things: either the collection is in the hands of a department of the credit company, or the collection is in the hands of a company that bought the debt. That will determine what happens next.

For now, do not make any contact with either of them. Wait until you receive something in the mail from whoever is trying to collect. That will tell you if it is simply a collection company that has bought the debt, or the original creditor. That is a pretty large debt, and it would entice many a collection company to purchase it for pennies on the dollar in hopes that they could get you to pay even half of that amount.

For now, do nothing. Wait for them to contact you. Spend your time trying to get yourself re-established financially first. Then, when they finally decide to make their next move, you may have the means to start paying on the debt again, if that is what you wish. However, I would only pay on the debt if it is the original creditor trying to get you to pay. If it is some collection company that has bought your debt, I would pay them nothing. They don't have a contract with you.

Do not offer the collection company anything. Making any offer to them can constitute a contract. Paying them anything will also constitute a contract. Just wait until they make contact by mail, and you will then know who is pursuing the debt. Also, do not talk with them on the phone. If you ask them who is calling, they will try to turn the tables on you by telling you that they cannot identify the company until they are certain it is you. They will then try to get your name, address and any other information they don't have. So, if they call, simply tell them they have the wrong number and hang up. If they finally send you a notice that they are taking you to court, then you want to act. Meanwhile, try to get yourself back on your feet financially.

Good luck to you,

Brian


hibar 3 years ago

I greatly appreciate your advice. What if either the original creditor or the some debt collection agency don't know where I am or have no way of contacting us. I am not in the States currently. What other means will they take? Will they wait until we move back or take other necessary actions? My intentions are to pay the original creditor back when I have the money and that will not be soon based on our situation however knowing this information you posted on your article makes me think otherwise for some collection agencies.

Hebar


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Hebar,

If you are not in the United States, I don't think the collection company can do much to collect. The statute of limitations is 3-4 years, depending on the state in the U.S. where a person resides, so if you were out of the country for four or more years, I don't see how they could collect.

Brian


em 3 years ago

Brian,

I was not yet served with a Summons yet, but of course I worry. Long before I found this site, I did send my letter of validation to the debt buyer based on other searches I did myself. In this letter for validation of debt, I was asking for a lot of proof from the debt buyer in order to validate the debt (there are 14 requests from me, in my letter]. They debt buyers answered back very poorly. One answered with only a page of a bank statement (the only proof), the other answered with a 'bill of sale and assignment of assets' which is for a 'lot #...of many other debts they bought (which by the way has in its context that debt is sold 'AS IS” and 'WITH ALL FAULTS' – so, it would be the right moment to invoke 'injuria....') – and my name is not there on this bill of sale, together with one page 'account information report'. None of these papers have letterhead.

My question is: Do I still need to send the 'Request for Production' – when the time comes – in order to reinforce my request for proof? Even that I already asked for all these proofs and they did not send anything?

Also, when I will send the Request for Production – is it okay to attach my letter asking for validation – or there is no need, because I can present this one in court when I will be present in court. My letter asking for validation of debt and their answers is a proof that the debt buyers 'knew' much time in advance what information I wanted from them and they did NOT provided it.

em


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

It sounds tome like the letter you sent reads very much like a request for production. The reason I send a formal request for production following the outline I gave in my article is so that I have "crossed all my t's and dotted all my i's," so to speak. But I think you have asked the right questions of the collection company, and if they want to have their faces rubbed in it, then they ought to show up in court without the proper answers to the questions you are legally entitled to ask of them. If you have time, it doesn't hurt to send the request for production using the form I gave at the end of my article. It would just be more "icing on the cake." The main thing is to be able to tell the judge that you need these things, that you have requested them, and that you have not been given sufficient proofs.

Brian


e.m. 3 years ago

Brian,

But I understand that the Request of Production must be sent to them 'after' I will get a Summons? ...and have a docket #. The form for it is specially designed for 'after' getting the Summons.

Is it the same to send it 'before' the Summons is comming ?! I think it will be helpful so to do what you say - in case of a trial, the Judge will not postpone the trial for another 2 months for this particular reason, so this means time saved.

So, if I will send it to the debt buyer (I like to call them 'debt buyer'),

do I need to send a copy to the Judge or court too? (remember, I do not have scheduled a trial as for now, so I do not have a docket # or a registration for a court trial).

Besides asking them specifically in my letter for validation - to send me contracts, agreements, recent and old documentations, etc. - I did ask them to send me their proof of a valid license to be able to work and collect in their own state and in my state. Of course, they did not send anything. I started myself to search for this informations and I even got an interesting result - one of the collection co. have their license cancelled/revoked few years ago, and it does not show that their license is back to normal. I found the information at their state website re: collection agencies. The infrmation was recent as of 1/16/2013. So, this might be a huge thing if it is really true that they work without valid license.

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

You are starting to confuse me. Either you are being sued by a collection company, in which case a trial date is set, and time limits begin. At such time as you are being sued, then you want to send a request for production. If you are not being sued, then I do not understand why you are contacting a collection company and engaging in dialogue with them, since anything you say or write to them can be used in court. My advice to anyone is not to communicate with collection companies, unless you feel a debt is invalid. If you feel the debt is invalid, then definitely dispute the claim and make them verify it. But in the vast majority of cases, my advice is to people who are being taken to court by collection companies, and it is to this situation I am addressing when I say not to communicate with them except in legal communications prior to going to court and after having been served a summons.

Brian


e.m. 3 years ago

Brian,

I was explaining in my previous posts that I am just getting ready to face a possible lawsuit from debt collectors in case they will bring me to court (if you read my posts in the past, you will realize what my reason was to be on this forum). The reason I am communicating with the debt collectors is: they sent me their first letters with the first announcement about debt and that I owe the debt to them - and I sent them back letter to dispute the debt and asking them to validate the debt they say I owe. That's all it happenend untill now.

I was explaining all this from the beginning when I've started to write here at this forum. Just trying to prepare myself for what's coming, and if this hppens, I am willing to use all your advices and all the good information that I know from this forum. I'm sorry I confuse you, but I thought I was very clear from the beginning that I am not yet close to a lawsuit, but it is more than sure that it is coming for me. That's 'why' I am asking questions. But I apologize again if my story was a bit confusing. And it's true, I will better ask questions at the exact moment when I am really in that specific situation when I need to go to Court.

Thank you for all your good advices.

e.m.


A69shelby 3 years ago

Had a pre-trial today (had a default judgement originally, showed it went to my dad and got it thrown out). Lawyer still wanted to settle but denied it, judge gave a 90 day discovery period, in which time I am able to file a motion for summary (to have it dismissed). Question, how can I file the motion if I have received no info from the debt collector yet, do I have to wait. I also found I had another default against me, I was working out of town and no one signed the registered letters, and there was supposedly a post left on the house, never saw it, I filed to have default set aside and have the hearing to set it aside next friday, plan on showing I was living out of town. Any advise?


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear A69shelby,

In regard to your first situation, your wording does leave questions as to who did what to whom, but if I am correct in interpreting your wording, the original case went to court without your knowledge, and the plaintiff received a default judgement against you. By proving that you never received notice, you got the default judgement overturned, thus, a new trial. If this is the case, you have 90 days to file your motions. I would send a request for production to the plaintiff, certified mail, return receipt requested, and a copy of that to the court. Then, wait for the plaintiff to comply. They must have those answers to you in writing before the trial date. Failure to do so would go heavily against them in court.

On the second issue, make sure you do the same thing as you did on the first one. Get the default set aside by proving why you did not receive notice, then plan your actions along the same lines as you did for your other one.

At no time do you want to admit to anything. The burden of proof lies with the plaintiff, and if you have read my article, then you know what they have to produce and all the things you want to say.

Keep me posted on your progress. Best wishes to you,

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

Thanks for clearing that up for me. I would not waste any more time communicating with any collection company. If they take you to court, you sound like you are more than ready now to take them on. They are definitely in for a surprise. Good luck to you,

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

You have done your homework with regard to some of these collection companies working "out of bounds," but I still say to anyone, there should be no communications with a collection company until they take you to court. Save what you have found out about them for the judge. It will make for an interesting time in court.

Brian


A69shelby 3 years ago

Hanavee, yes, there was a default on the 1st one to asset acceptance and I only found out once I was told of a garnishment from my employee, showed they sent it to my dad, same first last name, different middle. The 2nd from midland funding, I found when cleaning some stuff on my credit report. In the 1st case, I sent a request for production prior to the pre-trial hearing, do I need to resend one?


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

A69shelby,

The formula to follow is this: if you have been summoned to court, then you have been given notice of an upcoming trial date, and within thirty days of that notice, you want to file a request for production. If the collection company does not respond, and you sent your request via certified mail, return receipt requested, then you are covered.

The fact that your second situation is from the same thing, a default judgement that you knew nothing about, means that you should send the request for production to the collection company, which you did, and they should respond in timely fashion. If you have not received their response, when you go to pre-trial, bring this up and ask for a dismissal based on that. It all depends on you and the judge as to what he will grant. If he grants a period of discovery, then request that the judge demand they provide the production. They either can or cannot produce the items requested, and they will either fold, or they will allow a default judgement and try for tricks later at an appeal level. If the latter happens, obtain a good lawyer and get them finished off permanently.

Brian


e.m. 3 years ago

Brian,

I did spend a lot of time doing research on finding the rules and regulations regarding the 'out of state' debt collectors. I was happy also for finding that the out of state collection agency I'm dealing with, is not licensed in my state. I was hoping to use this information in court, when needed in the future.

But then, I found out something not so encouraging: “out of state collection agencies do need to be licensed in 'X' state' unless they own the debt or the debt they are collecting originated while the consumer was not living in 'X'. ('X' = my state). So, I'm a little disappointed for this matter.

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m,

Collection companies may, or may not, be able to collect in a state in which they are not resident. That would be up to the laws of the state in which they are trying to collect, but one thing is for sure, if they want to take you to court in your state, they have to have an attorney who is licensed in your state to present the case to the court.

No matter though, they still have to follow all the rules I outlined in my article. Once in the court, it doesn't matter what state they are from, they still have to have all of those proofs.

It's good that you are doing all of that research. That's how I have won cases in court more than once - research.

Brian


e.m. 3 years ago

Brian,

Yes, it is true. Especially that the collection company sent me as proof of validation (at my request for disputing the debt )- only 1 (one) page of an old statement with the previous creditor - nothing more. I think they must work hard from now on - because I am not giving up fighting for my rights. With all the knowledge I got here.

I'm ready for the big fight.

e.m.


e.m. 3 years ago

Brian,

I've heard that the collection company can bring to court one witness that is part from the old original creditor company,

in order for them to prove their ownership of the debt.

I've read somewhere that someone can question that witness in court. My question is: what kind of questions can be asked in order to diminish the role of that witness in the case?

That witness is maybe one of the thousands of employees that do not see too much, that witness was not there when contract with original creditor was signed, he/she does not even know 'who' I am...

So, I'm thinking there must be some questions to disagree with the witness, if it would be the case to do so - like questions: 'were you present at the contract signing?'...'when my contract was signed, what date? and where'...how many pages has the particular contract we are talking about?'.....or some questions like this. The samples of questions i put hee are not the best ones, i suppose....but there must be some kind of better questions in doing this. The debt collection co. and the witness will not expect to get this from the defendant. So, in doing this, i suppose the witness will loose credibility in front of the judge - if witness cannot answer these questions in court. What do you think? Isthi a good idea?! or it is not so important to do this.

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

A witness provided by the collection company for trial would have to have direct knowledge of your contract, your signing of that contract, and be directly related to the original creditor. Those three elements dismiss a lot of people.

How a collection company is going to provide an employee of the original creditor who was present at the signing of your original contract is beyond me. I'd love to see that one myself.

Brian


algiugni 3 years ago

Hi Hanavee:

Thank you for your great article. I have a case similar to J1J4T 's one and I was wondering if you knew what happened with hi? Anyways, I will mail the request for production letter tomorrow to CACH. I have a mediation hearing on April. I don't know the judge's name who do I mail the court's copy to? Thank you


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear algiugni,

Thank you for your kind comments. Regarding the outcome of J1J4T's case, I don't know, but you could certainly click on his link and send him a personal email to see where he is with his case.

As for who to send your copies to at the court house, the judge's name should be on the serving documents. If it is not available, you can either call the court house and find out, or you can mail it to the court house with the case number highlighted.

I always say, if you are not sure that you are going to be up to representing yourself at the first level, try to find an attorney who works for a smaller fee. They will get it knocked out of the ball park for you in no time and with a lot less hassle. Nonetheless, if you can't afford an attorney, then study my article until you know it very well. Your winning depends on you.

Good luck to you.

Brian


DIPhoto 3 years ago

Hi Brian, I first off wanted to thank you for taking the time to put together this article and responding to everyone questions or concerns so quickly. I imagine they are very grateful for your on going assistance.

If you would not mind, I wanted to get your input about my situation. I did not see this mentioned or asked in previous comments above and perhaps this will be helpful for others. I apologize in advance for it being somewhat lengthy, but wanted to provide details.

I opened a credit card account with Advanta Bank Corp in January 2007. In Jan / Feb 2010 and it was sent to a collection agency due to my loss of employment / financing and medical reasons. The collection company called and pressured me into payment program over the phone. With hardly any income coming in, I unfortunately agreed, obviously not knowing my rights and was set up on a small payment program with automatic with drawls on a checking account. After 1 year, the with drawls stopped, I contacted the Collection Rep. I was working with to inquire and was informed that their collection agency was no longer handling my claim and a company called Card Works was taking over.

From March 2011 to June 2012, Cardworks only contacted me twice via mail, asking for payment in full and then even offering me a settlement amount, which I couldn't afford and did not contact them.

I then received a letter from Law Offices of Curtis O. Barnes around August / September 2012 requesting payment in full. Now from memory, I am 80%-85% sure both mailings from the past two collection companies listed Advanta Bank Corp as the creditor, not the previous collection company because I remember thinking, a new company trying to collect on Advanta Corp again. A week ago, I received a call from their office (googled a strange incoming number) they left no message, but they did call my former residence, parents home, leaving a message indicating they were trying to update their contact information. After reading several "reviews" about this company, I ran my credit history this evening and saw that Law Offices of Curtis O. Barnes made a request for my credit history which makes me raise my eyebrows. At the same time there are no collections on file.

So, with all the information, my question is, even though I agreed to a "contract" with the first collection agency, technically there is no current agreement of collection with the past two and they are just trying to pick up the scraps on a charged off account OR can a collection company represent another collection to another? I would think you still would have to agree to the amount you owe to each company for them to begin a collection process or pursue legal actions or am I thinking incorrectly? Also, should I be concerned that this Law Office pulled my credit history and is that legal?

Thank you in advance for any information or assistance you can provide.

I also wanted to note that On March 19, 2010, Advanta Bank Corp., Draper, UT was closed by the Utah Department of Financial Institutions.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear DIPhoto,

Thank you for your kind compliments. I'm glad you are finding that my article is helping your situation. Hopefully, we can do more for you still.

From what you have written, it sounds like your original creditor is no longer in business, and it also sounds like your original collection company may have also moved on. The collection company that you agreed to pay, over the phone, sold your debt to another collection company. My guess is that you have a good opportunity to get rid of these parasites.

By now you know not to agree to any payments with anyone. The fact that you agreed over the phone with the first collection company, then began paying them, made a contract between you and them possible. But, the company that bought that debt from the other collection company (and it sounds like that was sold again) has no contract with you. My best advice is to use every step I outline in my article and you should be fine. And, as I always advise, if you have the ability to obtain the services of a debt relief or bankruptcy lawyer, do so. It makes life a lot easier. These lawyers handle cases like this every day of the week, and they know these parasite collection companies on a first name basis.

Sounds like you have a good case. Do your homework, present a good defense, and do not talk or communicate with any collection company other than to send them a request for production, if they sue you in court.

Best wishes to you,

Brian


A69shelby 3 years ago

I filled a motion to set aside a default judgement and have the hearing on 2/1/13, stating I was living out of town, got a mailing back from the collection attn with a response to set aside the motion for default (she wants it dismissed), should I turn any evidence in to the court, or just wait for the hearing date this friday? I have a letter from the out of state apartment complex, a change of address from post office, electricty turn off and some bank records showing I was in South Carolina, not michigan. Thanks.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

A69shelby,

Being as how your hearing is this Friday, I would simply take any evidence you have with you to court, in case it is needed.

If I am understanding you, are you saying that the attorney for the collection company (with regard to your request for the default to be set aside) is demanding that it not be set aside? In other words, she is trying to prevent you from having it set aside? If this is the situation, then by all means have your evidence ready when you get to court and be ready to present it to the judge. It would be a little late to mail it in, and I'm not sure that would change anything, since I am pretty sure that you will have to argue orally regarding this matter. It should be an open and shut case - your evidence will show that your rights were violated, and you have a right to proper procedure and due process of law. She cannot abrogate that right, no matter how convenient that would make it for her. Maybe she is hoping that you don't know how to defend yourself. Pretty rotten, huh?

She will present her reason for trying to prevent you from getting the default set aside, and the judge will ask you why it should, and you simply present evidence that you were not properly and timely served. You cannot be expected to appear in court to defend yourself if you have not been given notice. You have every right to mount a proper defense, and you must be given that opportunity by being properly summoned to court...which you were not.

She may also know that if you get that part knocked out of the ball park, she is facing the uphill task of proving that she owns the debt, and we all should know our rights when it comes to that one.

Good luck to you. Keep me posted.

Brian


hailey123 3 years ago

Hi Brian, Thank you so much for all of the information that you have provided. I it is absolutely the most useful information I have found online. I do have a few questions but first a little about my case. I answered my summons with lack of knowledge to everything. I went to the pretrial last week and the lawyer met me prior and asked what I wanted, my response was "I want proof, proof this is actually mine" she told me she will ask for a 90 discovery. The judge granted 60. The judge also said this case seems pretty open and shut simple credit card case. I tried calling some lawyers and either they were not interested based on how far im in to this case or they wanted like $1000 to assist. The lawyers were very non helpful basically telling me that I have done everything wrong and my answer would need to be re-done. Very not encouraging. But i also feel this was their way of selling me on hiring them. I have decided to move forward on my own. I plan on submitting a discovery request similar to the sample that you have provided. But I have a few questions. This is taking place in district court.

1. All this talk about filing summons, motions and filing any other document, do I just need to mail out my doc to the plaintiff/lawyer and the court and it will be filed if i do it certified mail?

2. Is it necessary to submit an amended answer including affirmative defenses or do I file affirmative defenses separately or just wait and bring them all up in court?

3. How do I subpoena the person that signed the affidavit? and request their employment records.

The biggest thing I want to make sure is that if I can mail docs to the court, everything I send will be considered "filed with the court"


guymac30 3 years ago

I read this amazing detailed post and it has so much information that is relevant to my current case, but I have 1 question.

I live in the state of Arizona and I've talked to a lawyer for a free consultation and no where did he mention the things you went into detail that would've greatly helped my situation.

Here is my most valuable question. In my answer to the summons where you must "admit" portions of the plaintiffs complaint I answered "that I do owe the plaintiff money". but when I answered the question I was under the idea that I owe my original creditor money not the junk debt collector.

Can I still dispute the debt if I've admitted I owe them in my answer to the summons? or did I just commit debt collection suicide because I failed to mention the difference in who I think I owe?(the debt collector vs junk debt buyer?)


StacyH 3 years ago

Has anyone received a Rule 26A Disclosures? I have not received a date but they did send us the statements. It states:

Rule 26 (a)(1)(A) disclosure:

A Custodian of the Records for Discover Bank

Discover Bank


StacyH 3 years ago

Also

Rule 26 (a)(1)(B) disclosure: Copies of the documents in the current possession of the Plaintiff's attorney which Plaintiff must disclose, pursuant to Rule 26 (a)(1)(B), are produced herewith and attached to this document.

Rule 26 (a)(1)(c) disclosure:

Plaintiff DISCOVER BANK is entitled to the judgement against Defendant , in the amount of plus court costs, plus interest at the rate of 0% per year from 2012.

Rule 26 (a)(1)(D) disclosure: Attached is a copy of the credit card terms and agreement in effect at the time of the default by the defendant.

Rule 26 (a)(1)(E) disclosure:

Attached are copies of the documents referred to in the Plaintiffs pleading that are in the Plaintiffs possessions.

Im sending a request for production should i just copy it the same as you have or add something due to this rule?


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

SracyH,

Rule 26 Disclosures are:

(1) Initial Disclosure.

(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

(iii) a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

So, if the plaintiff requested these of you, then there's the list. If you requested it of them, once again, there's the list. Essentially, if the plaintiff is trying this on you, you really have nothing to send them, because you are the only person on the original account, and you have no records. For this reason, because you dispute their claims that you owe them, you are filing a request for production. Without their proofs, you don't even know what they are talking about, and, if it were me, until I received those proofs, I, personally, would not send them anything.

Your post is a little vague, because I cannot tell for sure, but it seems to me that you are saying that the plaintiff sent you a request for Rule 26 Disclosures, and all they put there was "A custodian of the records for Discover Bank" and "Discover Bank," none of which makes any sense to me. If you have not been notified that you are being sued, and therefore have a court date, I would just set this letter aside for now and wait for the court date to see what you should do next. A request for Rule 26 Disclosures should follow a summons to court. If you are not being sued, how can they request Rule 26 disclosures? So, if you are not being sued, set the letter aside. If you are being sued, simply tell them you have no records.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear guymac30,

Thank you for your kind compliments. I am glad that my humble contribution has helped so many people.

As for why some lawyers do not mention the details in my article, there are many reasons why they don't bring it up, but, and possibly most likely of all, is that they know that all they have to do is call the collection company, tell them that they are going to represent you, and the collection company goes away. This is one of the reasons I tell people, if you can afford them, get an attorney. They are worth the investment.

Your questions is one that causes me to cringe, because, yes, you did make it hard for yourself when you answered that question the way you did. If there is time, call the court house and ask the clerk how you can amend that answer. Tell the clerk that you misread the question, and upon re-reading it, you realize that you mistook the question to mean the original creditor, not the collection company, because you know that you do not have any contract with the collection company, and you are disputing their ownership in court.

If they will not allow you to amend your answer, then be prepared with that statement when you go to court. Be ready to explain to the judge why you made that accidental statement in the response. A lot will hinge on being able to rescind that answer. It's going to be up to the judge. Some judges feel for the defendant, especially when they are not represented, and they will cut them some slack, even to the objections of the plaintiff, and sometimes, it is just the opposite. You have to try anyway.

Good luck to you. Keep me posted on how things turn out for you. I'm pulling for you.

Brian


StacyH 3 years ago

Yes they have sued. They summons me and then sent this along with statements and a terms of condition. What I wrote is exactly what the Rule 26 states. I know it is vague but that is all it says.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear hailey123,

Thank you for your kind words and compliments. I'm glad my article is helping your situation.

My best advice is always to try to obtain an attorney. If you really cannot afford one, then prepare like you are going into an important battle, because it really is.

Basically, you want to answer the court summons in a timely manner and tell them that you will be present in the court hearing. You also want to send a request for production immediately and within 30 days to the plaintiff, certified mail, return receipt requested. Send a copy to the court of anything you send to the plaintiff. I would send any amended answers to the court in a timely manner, and keep a copy of everything you send to the court, then bring those with you to court on the day of the trial.

Regarding the question of how to subpoena the person who signed the affidavit, you need to see the clerk of the court and ask for assistance in filing a subpoena duces tecum. The laws and rules for filing this vary from state to state, and there are fees, so you need to speak with the clerk of the court in your state, and they will guide you on this. Lots of forms to fill out.

Everything you mail to the court, if mailed in sufficient time to get there before your trial, will be filed with the court, and the judge will have them for his consideration.

Hope this has been of some help to you. Good luck. Hope you win.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

StacyH,

You wrote that the plaintiff sent this to you:

Rule 26 (a)(1)(B) disclosure: Copies of the documents in the current possession of the Plaintiff's attorney which Plaintiff must disclose, pursuant to Rule 26 (a)(1)(B), are produced herewith and attached to this

Plaintiff DISCOVER BANK is entitled to the judgement against Defendant , in the amount of plus court costs, plus interest at the rate of 0% per year from 2012.

Rule 26 (a)(1)(D) disclosure: Attached is a copy of the credit card terms and agreement in effect at the time of the default by the defendant.

Rule 26 (a)(1)(E) disclosure:

Attached are copies of the documents referred to in the Plaintiffs pleading that are in the Plaintiffs possessions.

The plaintiff is simply showing (as they are required to) the documents that they have (what documents?), which does not sound like they have much. Very importantly, they do not show the original signed contract between you and the original creditor. They must produce this. Remember all the things I wrote about in my article. They need to show all of those items - the amounts you charged to the card, when those charges were made, what was purchased and when, etc.

They have to have the original signed contract. They can wave around all they want to a copy of the rules and regulations of "any" contract they choose, but they are required to show the one "you" signed, and it has to have "your" signature. If they do not have "that" contract, you know what to do... and if you don't, then re-read my article again.

You said that you are sending a request for production, and you asked if you should just copy it the same as I have, or add something due to this rule? No, send the request for production exactly as I have it in my article, adjusted, of course, to fit your facts and information.

Brian


guymac30 3 years ago

Wow, such a small sentence on a civil answer form..."UGH" now I know why it's called a free consultation. What kind of judgement can the court make if I'm unable to amend my answer? I've taken the step of putting together my "request for production" letter and I read further into my case and they "SAY" I have an agreement with the junk debt collector. but the only agreement they have is one I felt forced to give over the phone. I know they record everything but an oral contract is very unlike a written one. Can an oral contract hold up in court? even if they still can't produce my original contract with the original creditor? soooo many technicalities.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

guymac30,

What you wrote on the form is one thing, but now you are telling me that you also made a verbal agreement over the phone? If you agreed to pay them (the collection company), if there was no statement made to you that they were recording the conversation, then they would have a difficult time getting that admitted into court. They would need a recording of you stating that you were agreeing to pay the collection company and the amount that you agreed to pay them. They would also need a recording of you agreeing to be recorded. You always have a right to refuse to be recorded. So, everything they are saying as per your agreeing to pay them, it would all have to be recorded.

It is one thing for you to say that you owe the original creditor, but it is totally something else for you to say that you owe the collection company. The defense that comes to mind is that you thought they were asking you if you owed the original creditor. Then, if that made it past the judge, I would return to the points outlined in my article....demand they prove they own the debt, and that they have a contract with you, etc.

You asked if an oral contract can hold up in court? Yes and no. There has to be proof that the oral contract was made. And you asked what kind of judgement can be made by the court if you cannot amend your answer? The judge can make any kind of judgement he or she wants to. That's the good and bad side of law. That's why there are courts of appeals, because not everybody agrees with the judge all the time. Judges aren't robots. They have emotions, and they have personalities. Some judges are good, and some are terrible. Such is life and law.

Keep in mind, there are two contracts that are in play here, according to what you have told me thus far. The original one was with the original creditor. That contract with your original signature must be produced for there to be any proof. The second contract is one that you may have inadvertently entered into by saying over the phone that you would pay the collection company. For that one to be valid, the collection company must produce the audio tape, and it must contain you being notified that you will be recorded, you being asked for permission to be recorded, you granting permission to be recorded, and you saying that you are now entering into a contract to pay the collection company. If they have all of this, then you may try pleading that you misunderstood the question. Sometimes, your attitude toward the judge can sway the outcome to one side or the other. Politeness toward the judge is always the best strategy no matter how it all goes down.

You said "so many technicalities"....yep, you're learning. Good luck to you.

Brian


e.m. 3 years ago

Brian,

Is medical bills debt treated the same as the credit card debt in regard to debt collections ?! I am thinking on the aspect of 'signed agreement' in the past when the medical treatment was done - it might be somewhere a consumer signature that agreed to the medical treatment - and maybe in this kind of case, the debt collector can easily access medical records. BUT - thinking that another debt 'buyer' has bought the debt from medical company - I believe it must be treated as a regular credit card debt. The new debt buyer does NOT have an agreement with you, does not offer you same service - this is the main point. And they must bring the proof of their ownership of the debt amount.

I suppose the debt buyer needs to be treated as we already know, with fighting for our rights. Am I right?

e.m.


e.m. 3 years ago

Brian,

I need your advice.

I have a medical bill that I thought that my health insurance has paid.

But now I got a letter from a collection agency, telling me about it, and if I want - to dispute the debt - otherwise they will assume that the debt is valid. I want to sent them a letteras a 'request for validation'. But in this case, a medical bill - it is a different story than a credit card debt collection. Should I use the same request for validation as I used for credit card debt collectors?!...

In my previous letters asking for validation from debt collection ag. regarding credit card debts (another case) - I was asking almost the same questions (as the questions in your Request for Production) and even more, as proof for validation from their part'.

Do you think that if I send a letter as request for validation, and I will use almost the same questions, only slightly changed - adjusted to the medical field - would it be okay?.

I am just confused if the process is the same with the credit card debt collection. Especially that I'm thinking that in this case, debt collectors can get more information from a medical source than from a bank (in a credit card debt case).

Can you think of any other information even small that would help me in this situation of a medical bill debt collection?

Thank you.

e.m.


e.m. 3 years ago

Brian,

I am sending a letter as request for validation of debt to a medical debt collection. I am asking your opinion, if it is okay to write this request, ornot:

'-provide me all the documentation regarding on how your collection agency is related to the original creditor, and how your collection agency has obtained and has in its possession the debt that you say I owe.'

Will this 'say' more than it supposes to be said in questionning them?

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

Collection companies are mostly all the same, and the debts they buy are usually purchased the same way. Using the methods you suggested certainly can't hurt.

Brian


Scarlet26 3 years ago

Brian,

I am so sorry if you've already answered this prior, but does any of your initial post still apply if I didn't even know there was a judgement against me until I got a letter from a law firm representing the collection agency saying they had acquired it? Does the collection agency now own my debt? It seems rather sneaky, because the judgement notice was sent to my old address, but the letter from the law firm was sent to my current one. Your advice would be greatly appreciated!


e.m. 3 years ago

Brian,

Re: disputing debt and asking for validation of debt from debt collectors (after receiving their first letter/notice about debt):

What strategy is better to use, from the following two:

- is it okay to send from the beginning the same questions as they are in your 'request for production'? - and showing them that you 'know your rights' and 'you know a lot about this matter'? ----- OR ------

- at the beginning - just ask just more simple questions for them to validate the debt - and 'not' let them know or give them the idea that 'you already know ' how to defend yourself. Then take them by surprise when (if) they call you to court...! ---------OR--------

- ask for validation with more detailed questions, just to show that you know a lot about the process - and this might make them think to 'leave you alone' because they will realize that it is more difficult for them to face a defendant who knows his/her rights.

Thank you in advance for your answer.

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

Most people are not language majors. Their English tells on them. Once a lawyer, who has had tons of English grammar training in order to fully understand legal terms and writings, sees what a person writes, as well as how a person writes, the lawyer knows immediately what they are up against. In fact, in an attempt to match wits with a lawyer, many a person has undone themselves. It is quite conceivable that a person could get carried away with trying to sound legal and end up saying something that destroys their case. This is why lawyers tell their clients when to speak and when not to speak. The lawyers know the pitfalls of "miss-slips." So, my advice is the same - if there is a legal form already available, use it. The work has already been done for you, and only the legal document is going to give the plaintiff's attorney pause. Someone making grammatical errors is going to give them hope. If you are going to match wits with a trained lawyer, you had better be a lawyer...or as good as one. Otherwise, stick to the script.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Scarlet26,

If a default judgement was awarded against you due to non-attendance, you need to contact the court and ask that the judgement be set aside for the reason that you did not properly receive notice to appear. Proper and lawful notice to appear would be a letter sent via certified mail, return receipt requested, to your current address by the court stating that you were being sued. It would stipulate a court date, and you would be given a timeline in which to notify the court of your wish to appear for the trial. The fact that you did not receive proper notice is a legal defense, so call the clerk of the court and ask them what you need to do to correct this.

Once the court sets the default judgement aside, you will then get a new court date to do exactly what should have been done in the first place. At that time, do your homework, and study my article well.

Good luck to you,

Brian


Kevin 3 years ago

Hanavee,

I'm going to be sued by a collection company and I want to start looking for the right attorney. What kind of attorney is best for the job?


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Kevin,

Sometimes, when you are being sue by a collection company, you will receive offer letters in the mail from attorneys who specialize in these types of law suits. If you do receive these, check each of them out, because one of them is going to have the lowest rate and the best attitude. A lawyer should give you hope that you can win by first looking at your evidence and seeing if there is a strategy for beating the collection company. If the lawyer simply says, without reviewing anything else, let's try to work out a payment arrangement with the collection company, then you most definitely have the wrong lawyer.

To find a lawyer another way, simply Google debt relief and bankruptcy lawyers in your area. You'll find a list of them. Call and ask them if they handle collection company suits, and if they do, then ask them what their rate is. You'll find out real quick that some lawyers are only out for big money, and they will quote you rates that are through the roof. Keep searching. You're bound to find one who is sympathetic to what you are going through, and may even allow you to make a payment arrangement so that you don't have to pay the entire fee at once. Whatever you do, don't give up. Work hard, because you have a right to win.

Good luck to you. Keep me posted on how things go for you.

Brian


A69shelby 3 years ago

I go to court to stop the 2nd collector today, on the 1st (found out once I got a garnishment request, originally they had my dads name, different middle name than mine, in discovery now)

I got a request for production of documents from the 1st collection company (asset acceptance), however the name is still my dads, should I ignore it, let the court know, answer anyway, etc... Thanks.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

A69shelby,

Sounds like the first collection company is going to persist no matter whose name they have. As long as they have your current address, even if they have the wrong name, they are demonstrating that they are going to keep at it until you finally face them in court. You could use the defense that you are not the person on the summons. It is a long shot. But, when a company is as aggressive as they seem to indicate, then my opinion would be to go after them by simply cutting to the chase. One strategy is to fight them by denying ownership, but they would most likely come back with your correct name once they fought that issue. So, you could go the route of making them do their homework, or you could go to court and tell the judge that the debt is not yours, that it belongs to your father, and several outcomes would evolve. One would be that they then begin to harass your father, or another would be that the judge asks you point blank if the original debt was really yours. Depends on the judge, but the judge could insert himself here. So, just looking at all of the paths this could take, I still think that, if I were in your shoes, I would simply cut to the chase and reply to the request for production. But, if they do not change your name on their requests, bring this up as a good point in the courtroom that this company cannot even get the right name. How much less can anything they show as evidence be trusted?

I would assume that their request for production is going to end up with very little, because you most likely will not have any records that you can share with them. Like most people, you have probably thrown out all of your paid receipts and bill summaries from any original creditor. So, what can you give them except a letter telling them that you don't have any of the items they requested?

Let them take you to court. Send them a request for production of your own. By now, having read my article, you know your rights and what you are entitled to. Chances are very good that they don't have sufficient material to make their case.

Brian


Eva 3 years ago

Hi Brian,

I just wanted to let you know that after sending in validation notice to both court and Collection Company ( certified mail of course ) that is trying to sue me, I have not got any response. It has been now 50 days and when I call court they state to me that there is no court day set up and no answer filed from Collection Company. Other then waiting is there anything else I can do? Would I be able to file some paperwork asking for dismissal before the court date considering i did not get any proof i asked for ? This sitting around is just killing me and I guess the unknown of it all. Also to my understanding the Collection Company is suppose to answer to my validation with the court is that not true? So that I can prepare my case?.

Thank you for your time.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Eva,

You sent in validation to the court saying that you intend to defend yourself in court. Apparently, if no court date has been set, one of two things is happening: the collection company has dropped the case (not common), or the collection company is trying to get their act together. Waiting can be nerve wracking, because you want to move on and not still be facing the uncertainty of it all, but keep in mind, most of these cases are in the defendant's favor, if the defendant knows and acts on their rights.

If a court date was set, and the collection company did not respond in a timely manner to your request for production, then you would have a right to ask that the case be dismissed. Trust me, if the collection company wants to play tricks, they can withdraw temporarily, then come back, then withdraw, all by pulling legal tricks to get delays. I think it is harassment, but such is life. If you want them done once and for all, get an attorney and let the attorney set them straight. That is one thing collection companies absolutely fear is having a legitimate attorney go after them. But, if you cannot find an affordable attorney, then do your homework, go to court, and win your case following the right procedures I outlined in my article. I was just as apprehensive as you are when that day came for me, and I am free of those blood suckers, because I followed what I wrote.

Good luck to you,

Brian


Kevin 3 years ago

Dear Hanavee (Brian),

I would like to thank you for replying so fast to my post regarding finding the right attorney for the job. I'd just like to share you with my story just incase you want to know. :)

I'm in a early stage with the collection company. During Christmas time, I received a letter saying that I owe a collection company 7k. After getting that "scary" letter, I did a little googling and found this greatttt website.

--In Letter #1, I didn't say much. I told them in writing that this debt is not mine.

--1 week later: they sent me a bunch of contracts (contracts between them and the original credit card company.) So in letter #2 I sent them a request for production. (is it ok to sent them a request for production before being sued?) and again, I told them that the debt isn't mine.

--2 weeks later I received a fake judgment letter saying that I owe 7k + interest. They also offered a debt settlement if I called their office (which I didn't call)

--The last letter I told them that if they can't come up with my request for production, how are they going to get a judgment against me? (I dont know if I should say that in the letter, but I did.)

well....and here I am....waiting for them to sue me. I have 1.5 years left before statute limitations in my favor.

Please let me know what I did wrong or What I should do next....

Thanks for reading my story. YOU ARE THE BEST!!!!!


metalgal 3 years ago

Brian,

Thank you for all this wonderful info. I'm a 31 year old, who just finished up with my Bachelor Degree in Criminal Justice, and before I look for a job, I want to make sure my credit won't hold me back.

Basically, throughout the time I was going to college, I have worked on and off waiting tables. Since my schedule was limited, and the economy started to fall, money became an issue. I got myself into a few credit card debts, some paid off, and 3 others I had to stop paying just to make ends meet. I get the calls and notices from different law firms, and I also consulted a bankruptcy attorney. He told me that my debt was not really that big, (BOA -$9,000/Chase $3,000/& Capital One & $1500) and he advised me to contact the creditors to see about settling. So I did, but it was already too late. They had already sold my accounts over to collections, and from there, it got sold to law firms. Basically, I contacted the firms that had Capital One and Chase first, and they were willing to settle w/ payments, for a reasonable amount. So I was starting to feel an end to the madness. Unfortunately, when I contacted BOA's firm, which I can't recall who it was, it was like speaking to the mob. They were only going to settle for $5,000, and the so called manager of that firm said I would have to have it by the end of that month, and was NOT willing to make a payment arrangement. This was in October btw. At that point, I spoke with the attorney again, and told him the outcome, and of course, there was absolutely NO way I had that money, and he said basically the clock is ticking, and I should receive a summons from a sheriff soon, and from that time, since all my other options had been exhausted, he said that's when I should start to go through with filing bankruptcy to prevent them from garnishing my bank account, and my whopping $2.13/per hour checks. I have yet to see this, but I only know it's a matter of time. I do NOT want to file bankruptcy b/c if I do, that will ruin any chances of me getting a good, possibly a gov't job. The calls have lessened, but I'm really worried, and I feel like I may have messed up by contacting them in the first place. I never agreed on anything, and I never called them back or answered the phone since.

In the 2nd week of January, I received 2 "communication" letters from 2 different firms, for the 2 accounts I have with Capital One which was dated December 26, 2012. It said that I had 30 days from that date to dispute the validity of the debt, and/or to make an arrangement. I haven't yet, b/c I want to get some your advise on this. Do you think I could possibly do what you suggest in your blog, or do you think since I already contacted them to attempt to pay the debt, that it wouldn't work b/c they said that the conversation was recorded, so that basically is admitting I am aware of that debt? I haven't received any other communication, that I'm aware of. I also can relate with the mail getting lost and/or delivered late, so it maybe possible that I just haven't received any others b/c of that.

I appreciate you taking the time to read this jumble, and I look forward to your reply.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Metagal,

Hang in there. I know it can be daunting and vexing, but the battle is not lost. Since you have studied law, you at least have some idea of how the courts work. It sounds to me like you have several collection companies coming after you all at once, and the phone call to the one guy sounded like a backroom set up where they just beat you up to get the money, money that they do not deserve. I doubt any of these collection companies are connected directly to the original creditors. Your debts sound to me like they were bought by the typical blood suckers.

Regarding the letter that says you have 30 days to dispute the debt or make payment arrangements, that is a bluff. Who are they? The court? The judge? No, they are just as incapable of enforcing that threat as you or I. They cannot act on the fact that you remain silent other than to sue you in court. What are they going to say there? You didn't respond to their threats? And that makes you liable? For what? How does that make a contract?

One, or all, of these companies will possibly take you to court. The fact that you may or may not have made a statement on a recorded phone call that you would pay anything to them is not sufficient, in my opinion, to get the entire amount that you owed your original creditor. Make them fight for every penny they collect. If they file legal requests with the court and you, then comply with the legal requirements, such as requests for production. But, threat letters are not legal documents for court. The collection companies can huff and puff all they want to. They are not the courts.

Let them sue you in court. Till then, I would have absolutely no communication with them in any form. And if, per chance, you lost the cases, then I would immediately file for bankruptcy. Bankruptcy is not the end of the world. Someone I knew filed for bankruptcy three times in his life before ultimately becoming a millionaire. You can live with a bankruptcy. Make it a last resort, but if all else fails, it is a legal resort nonetheless.

Good luck to you.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Kevin,

Thanks for your kind compliments. Hopefully my article helps save the day for you.

I would not send any more letters, or have any other communications with this collection company until such time as you are notified that you are being sued in court. All you are doing is playing into their hands, because any and all communications between you and them can be used in court. They want to get something from you that they can use, so don't play their game. The fake letter saying that they have a judgement against you would be easy to verify, because you could simply call the court where they supposedly held the trial and check to see if such a trial was held. It is not binding as a decision if a.) there was a trial and a judgement rendered against you, and b.) you were not legally notified of this trial in advance so as to appear. You cannot be tried without due process. So, if you are certain that they did not pull a fast one and get a judgement against you, then rest assured that you are dealing with the typical sleazy collection company.

The fact that you sent them a request for production should have rattled their cage a little. They may decide to pass on you for that reason, or they may dig their heels in and go for the money. Stand your ground. Only communicate with them if there is a summons to court, and then only in the means required by law.

Good luck to you,

Brian


Eva 3 years ago

Hi Brian Thank you soooo much for the fast response,

Your website has become my morning news paper I have read how to win as you outlined every day so it becomes more natural to me. With that said im no where near being attorney. But years ago when my family member was in this situation and of course no research was done on this subject as I was much younger then, we took our case to a Lawyer thinking that when you get one the lawyer would be on our side. We had consultation he was very convincing of the case and how he can make things go away or at the least get rid of all the charges on it. SO we paid 700 bucks thinking we were in safe hands, I mean what do I know about law. What ended up happening is he took our 700 bucks ended up with no court date and settlement of exactly what they asked for. Needless to say this situation has left BAD taste in my mouth I mean we did not need to get lawyer to have nothing changed. What we thinking happen is he given them call send in paper work and it was done deal, later he said that he knows this collection company very well and deals with them all the time and this is best deal we will get to just sign. Well I feel he was paid by both me and the collection company.

SO when I am dealing with this myself now I just don’t feel the lawyers are really there for you unless you have thousands of dollars to pay to them to defend you and your rights. I feel I have so far done more then the lawyer or many of them from what I heard would ever think of doing ( with the help of research and your WONDERFUL ongoing website ). I know its sad that one lawyer makes bad name for others. But I think you can understand where im coming from. However I do understand if my case goes to higher court system I will not have much choice but really shop for lawyer with integrity.

Just wanted to share another opinion on lawyers and my experience with them in hopes it may help someone.

Thank you so much for your time.

PS: thank you so much for such a fast response and I guess I just have to be patient 


metalgal 3 years ago

Thank you Brian for the fast response! So do you recommend I follow your suggested steps if I do get summoned to court? Do you think I stand a chance?


mgaraua 3 years ago

I have already started to have my wages garnished by the lawyers coming after me for an old 2003-2004 Capital One credit card. I did an order to show cause and have an upcoming court date. Can I still follow your process for my situation? They called to set up a payment plan with me and even offered a smaller settlement amount. My car loan is through Capital One and I think that's how they were able to get all my information. Should I take the offer or follow your process? Would it still work for me?


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear mgaraua,

This is a new one. So, the collection company is now garnishing your wages. In order to do that, they had to have sued you in court and won, either by your not being there and losing by default, or by your being there and not having presented a winning argument. Either way, you are now at the point where they are acting on that judgement. If the judgement was a default judgement based on your non-attendance at this trial, then you need to present to the judge the reasons for your non-appearance at trial. If the reasons are compelling, the judgement should be set aside, and you should be given a new trial.

You stated that you requested an Order to Show Cause. If you did this, then you should know that you had to do the following:

"An Order to Show Cause must be supported by an Affidavit. An Affidavit is a sworn statement made before the clerk or notary public which explains to the court why your request should be granted. You may submit as many affidavits from as many people as you feel are relevant to prove to the court that the request in the Order to Show Cause should be granted.

The Clerk will give you a free civil court form when you come to court, or you may use one of your own.

In the Affidavit in Support, you should:

1. state the reason you are making your request,

2. state the relevant facts about your case,

3. state whether or not you have ever made the same request before, and

4. attach copies of any relevant documents you are referring to in your Affidavit.

After you have filled out the Affidavit, you must sign it at the bottom in front of the clerk, or a notary, so that it can be attached to the Order to Show Cause and submitted to a Judge."

I hope that this is what you did. If your affidavit supports your claims, the judge will order the collection company to cease their garnishing of wages until such time as a trial can be held in which the determination of your case will be decided by the facts presented by both sides. Be ready with your defense. If you get the garnishing stopped, and if you get a new trial, then file a request for production immediately and fight them with demands listed in my article.

Good luck to you.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Eva,

Sorry to hear about your experience with that lawyer. He made true what someone once said: "What do you have when you have 1,000 lawyers at the bottom of the sea? Answer: A good start."

There are good lawyers, and there are bad ones, and obviously, you got a bad one. Don't lose hope, there are still some good lawyers practicing out there. There are legal services where lawyers donate some of their time to help people who are in need of legal assistance. Every city that has a large legal contingent has such a service set up, although they seem hard to find. You can check with the legal directory in your city to see if there is one of these agencies set up near you.

Be patient, study well, and be ready to defend yourself when the time comes. Many have read my article and put it to use, winning their cases when they originally thought they were lost causes. Keep me posted on how things work out.

Best of luck to you,

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

metalgal,

You're welcome. There are two things I always advise: if you can afford a lawyer, by all means get one (one who deals in these types of cases and fights them rather than tells you to pay the collection companies), and if you cannot afford a lawyer, then read and re-read my article until all of it makes sense, and you can argue your case like a pro. You have nothing to lose for trying, and you have a good chance of winning if you do try.

Most of these collection companies do not want to fight in court if they think that you are going to show up and offer a good defense. In fact, some people hire lawyers to sue these collection companies for misrepresentation. So, if all else fails, go to court and act as your own lawyer. But, one thing I tell people, there is an old saying in the legal profession: "He has a fool for a client who acts as his own lawyer." You don't want to make that saying come true by acting like a lawyer and putting on airs like some television actor. A judge knows when he is hearing someone who is acting with arrogance and conceit, and judges do not tolerate shenanigans in their courtrooms; so, know your stuff, but deliver it humbly. Humility and courtesy go a long way with most judges (most - because there are some who wear the robes who don't deserve the honor), so check any attitudes at the door.

Most people trying to represent themselves are simply downright scared, and that is understandable, too. The best thing for fear is to know that you are prepared. Have your notes in front of you. Practice them many times over every day before the actual trial. Being scared is not against the law, and any judge has to sympathize a little when he sees this. So, the key is, practice, practice, practice. Trust me. The best lawyers arguing before the Supreme Court practice, so you are not going to be any different. I did. You have to, too.

As far as telling anyone what their chances are with regard to any particular case, I can only say that it is in the hands of the judge, not me. But, if you follow the steps I outlined in my article, you have a better chance than if you did nothing. My article at least gives you a fighting chance.

Best wishes,

Brian


Mike 3 years ago

Brian-

I can't begin to tell you how much your advice helped me today in court. The lawyer did show up, (Michael Ratchford-Scranton) He left me for last to mediate before the Commissioner came into the room. He called my name and asked me to step into the room where other attorneys were tricking people into payment plans. My heart really went out to them. Many of the people, who had the legal right on their side, were fooled into settling. Anyway, Ratchford's guy sat me down and began to look at the computer. He didn't say anything for about 2 minutes. He was waiting for me to put my foot into my mouth. The conversation went like this:

Me: Sorry but who are you?

Him: My name is John Doe (I don't recall his name at the moment)

Me: Sorry, but who are you?

Him: I am the attorney representing the Plaintiff

Me: Sorry, but who is this Plaintiff?

Him: Midland Funding, the ones that you owe money too

Me: No idea what you are talking about

He continued to look around the computer and then said:

Him: I can't seem to find the "Service"

Me: What's that?

Him: Doc that says you were served. Do you have the contract that was with the Statement of Claim?

Me: All I have is a piece of paper telling me to appear here today.

Me: I sent you a letter asking for a "Request of Production"

Him: Yes, I received that and you should have received my reply in the mail.

Me: I received nothing

Him: Ok, well it's on my desk and will be mailed right away with a copy of the contract and purchases. Now, how would you like to repay the money that is owed?

Me: I don't recall this account

Him: It's for the sum of $?????

Me: I don't recall this account

Him: OK, I have to speak to the Commissioner to see what he wants to do

Me: I know what I want to do. I want immediate dismissal. You are wasting my time

So, ten minutes later he was up front whispering to the Commissioner and the Commissioner said to him "But I must inform him of his rights." The Lawyer then turned to me and said "I have withdrawn the lawsuit, YOU MAY GO HOME." I then stood and asked to speak to the Commissioner. After waiting until everyone else's turn, I asked the Commissioner for a dismissal. He said that only a Judge could do that. I asked to see the judge because I wanted to make sure that Ratchford doesn't haul me into court a second time. The Lawyers face dropped. He looked pissed off. I then went down the hall and the lawyer did not follow! The judge changed the outcome from "Dismissed without Prejudice" to "Judgment for the Defendant." He did however say that they did have a right to appeal, but it was unlikely.

Brian, thank you again for your much valuable information and help here on this site. I really appreciate you taking the time to share your knowledge and help us. I don't think I could have pulled that off today without having first read you comments here.

I'd like to wish everyone else on this site GOOD LucK! Now, I have to wait to see if they appeal. I really don' think they will, but who knows?

Thanks again

Mike


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Mike,

Thank you for taking the time to share your experience. I am so proud of you for what you did and how you did it. Super congratulations to you! Absolutely super! What you have shared here will go on to help many more people, because your experience shows that people can stand on their rights and put a stop to these blood suckers when they come marching into town with their fancy shows and fake threats. I can assure you that your post today is going to give a lot of people that lift in confidence and reassurance that they need to go on and fight for their rights when their turn comes in court.

It is sad to think of how many people do not know what I have written concerning their rights, and you see them being herded like frightened sheep by these wolves and forced into signing on to contracts that require them to pay money to collection companies...collection companies that do not deserve a single dime, and companies that are owned by rich pigs who found a way to twist the law to their selfish benefit. You don't know how happy it makes me to see another person give them a smack up side their heads. Once again, Mike, super congratulations to you! Job well done!

Brian

P.S. Do you know why he saved you for last? He did not want any of those other people to hear what you knew - your rights.


e.m. 3 years ago

What 'Judgment to the Defendant' means ?!


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

Judgement to the Defendant means that the collection company lost.

Brian


e.m. 3 years ago

Brian,

Thank you for your answer.

I was asking this question, because I did not understand from the earlier story here in this forum - 'why' the Judge changed his decision from 'dismissed without prejudice' to 'judgment to the defendant'.

It is almost the same, or 'it is' the same....isn't it? and if not, what's the difference between the two ?!

Thank you.

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

When a case is dismissed without prejudice, it means that the court did not find for the plaintiff or the defendant. The court is saying that the plaintiff did not present enough facts for the court to make a judgement. Therefore, if the plaintiff wants to come back to the courts with an appeal for another trial, they can, and the plaintiff then presents their case as if nothing had happened in the lower court.

If the court rules Judgement for the Defendant, it is a totally different matter. This means that the judge has said to the plaintiff, "You presented your case, and based on what you have presented, I judge in favor of the defendant, because your evidence does not show proof sufficient to win." What this means is that now, if the plaintiff wants to take you back to court, the plaintiff has to file for an appeal based on "new" evidence that was not shown at the first trial, or the plaintiff has to show to a court of appeals that the judge was in error when he decided the case. Pretty hard to do. This is why the judge told him that the plaintiff could file an appeal, but it would be highly unlikely.

Brian


mgarayua 3 years ago

Thank you, I already went through that entire process and was given a court date already. I just wanted to know if missing court the first time around or having had them already begin garnishing my check (now stopped) would be against my favor in court or would I still have a chance to win following your process?


A69shelby 3 years ago

I am answering the list of interrogations from the lawyer from asset acceptance, here is what they asked and my answers:

1. name of person who prepared responces (listed me)

2. names of each person to have discoverable info (none)

3.witnesses (listed the person who signed affidavit from assest acceptance)

4.name of persons who have knowledge of case (none)

5.as to each affirmative defense set forth factual and legal basis to support each defense and state how each fact supports the legal application of each affm defense (list the 9 points listed in your article?)

6.do you keep financial records? (No)

7. please produce any and all docs identified in 6(n/a)

8. plase admit you entered into agreement with hbsc for a loan(dont have knowlege sufficient........)

9.if you did not admit to 8, list legal and factual basis supporting your denial(what to answer, since i didnt deny?)

10. list acct numbers, date opened and last charges to each hbsc acct (again defendant is without info........)

11. please admit you are responsible for charges to acct in summons (again defendant is without knowledge....)

12. list legal and factual basis to support denial( again didnt deny what do i put)

13. list authorized users( again defend is without knowledge....)

14. please admit to unpaid balance(again defendant is without knowledge....)

15. list basis for denial and list dates of charges, payments, list all financial institutes you have accts with 3 months before and after may 31, 2006 (what do i say to not supply all my accts to the lawyers??)

16. is there any part of the claim you admit to owning (again no knowledge....)

17. please admit a payment was made on 6/31 2006 (again no knowledge.....)

18. list accts and names 6 months around 6/31 2006 (again how to answer?)

20. state whether defendant ever disputed val or accuracy of any statments made by plaintiff or predecessors (answe agin with no knowledge......??)

thanks!


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

A69shelby,

Reading what you wrote, it looks to me like you have done a good job so far. I have written my opinion at the end of each sentence.

1. name of person who prepared responses (listed me) - Good

2. names of each person to have discoverable info (none) - Good

3.witnesses (listed the person who signed affidavit from asset acceptance) - This may allow you to call their "witness" to testify.

4.name of persons who have knowledge of case (none) - Good

5.as to each affirmative defense set forth factual and legal basis to support each defense and state how each fact supports the legal application of each affm defense (list the 9 points listed in your article?) - Yes, I think this would be appropriate here. Just list the points. Don't elaborate on them. You'll do that in court, if it gets that far, and only if necessary.

6.do you keep financial records? (No) - Very good.

7. please produce any and all docs identified in 6(n/a) - Good

You don't have any.

8. please admit you entered into agreement with hbsc for a loan(don't have knowledge sufficient........) - Good

9.if you did not admit to 8, list legal and factual basis supporting your denial(what to answer, since i didnt deny?) - Here, simply repeat your answer for number 8.

10. list acct numbers, date opened and last charges to each hbsc acct (again defendant is without info........) - Good

11. please admit you are responsible for charges to acct in summons (again defendant is without knowledge....) - Good

12. list legal and factual basis to support denial( again didn't deny what do i put) - Same answer as number 8

13. list authorized users( again defend is without knowledge....) - Good

14. please admit to unpaid balance(again defendant is without knowledge....) - Good

15. list basis for denial and list dates of charges, payments, list all financial institutes you have accts with 3 months before and after may 31, 2006 (what do i say to not supply all my accts to the lawyers??) - Here, I would give the same answer as number 8, and see if they call you on it. What are they going to do if you don't keep records? Put you in jail? Number 15 is actually a multiple question. The first part asks "the basis for denial," and that again is the same answer as number 8. The second part is asking you to divulge information irrelevant to your relationship with this collection company. I would simply tell them you do not have this information. They can take it up with the judge, and if they do, ask the judge how your not having this information is relevant to this case in the first place. I don't think they have a leg to stand on asking this, anyway. If it was asked in court, I would simply say, "Irrelevant, you Honor." And if, for some strange reason the judge allowed the question, then I would answer that I do not have this information.

16. is there any part of the claim you admit to owning (again no knowledge....) - Good

17. please admit a payment was made on 6/31 2006 (again no knowledge.....) - Good

18. list accts and names 6 months around 6/31 2006 (again how to answer?) - You do not have this information.

20. state whether defendant ever disputed val or accuracy of any statements made by plaintiff or predecessors (answer again with no knowledge......??) - Good

I think you are putting up the proper defense. Good luck. It all sounds good to me.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

mgarayua,

Several questions came to mind when I went back and read your original post. If the debt was that far back, 2003 or 2004, how are these people coming after you now? The statute of limitations is 3 years in some states, 4 years in others. Regardless of which state you live in, the statute of limitations has expired. Did you agree somewhere along the line to make payments to some collection company? Or, were you still paying on these cards after those dates? If no payments have been made since 2004, this debt is beyond the statute of limitations.

Missing the first court date will not go against you unless you were properly notified and then missed the court date. To be properly notified, you had to receive a summons by certified mail with return receipt, or the sheriff had to come to your house and make you sign for the summons. If you were not properly served, then you were denied due process of law, and you are entitled to a new trial. The fact that they already began garnishing your wages does not mean that they have a right to do so. Not until this upcoming trial is held, in which you will need to show that you were not properly served. Then, if that is established, the next step will be to follow the steps outlined in my article, including filing a request for production. If it is too late for that, then proceed with that request in court. They will have to produce the items requested, even if you have not had time to file the letter. Just demand these in court. It is your right to make demand for this evidence, and in order to win their case, they have to prove their right to win...which can only be done with proof. At that point, it is their right to ask for more time, or fold.

Hope it all works out well for you.

Brian


StacyH 3 years ago

So I had the debt in my name but then added my husband on my account and the collectors called my husband to collect. So i looked at his credit score and noticed that it did hit his credit as a charge off. Is there anyway we can dispute it on his credit score so it doesn't affect him?


StacyH 3 years ago

Also how about disputing credit dings on your account. what is a good way to get rid of them? Can we send a proof of production to see if they can produce it to put the negative thing on your account?


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

StacyH,

Credit reporting agencies, like TransUnion and Experian, rely on data sent to them by creditors and other financial reporting agencies. They do not monitor court actions, nor do they respond to requests for production, as far as I know. In order to clear negative information from anyone's credit report, that agency has to be contacted to see what they will need to remove it. You can contest anything that is on your credit report, but only you can contact them, and only you can communicate with them regarding any disputes. They will guide you as to what they require to clean up your report.

Brian


mgarayua 3 years ago

Thank you very much for help. I will be sure to follow your process.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

mgarayua,

You are very welcome. I wish you all the best of success.

Brian


naphleon 3 years ago

I have a quick question. I've been contacted by a company that found that a lawsuit has been filed against me by the lawfirm Pollack and Rosen, who apparently have purchased an old cc debt of mine from Citibank. My question is, they have left two or three notices at my front door trying to serve me papers but have yet to catch up with me. Are they required to serve me the papers, or can then send them by certified mail, or can the lawfirm move forward without me having to sign anything, if they prove they tried to serve me? The notices that have been left on my doorstep provide a name and number to call, in order to arrange a specific time to recieve these papers. Should I call and make arrangements to be served..or just continue to avoid the serving agent? Your help is greatly appreciated.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Naphleon,

You say that you have been contacted by a company that found out that you are being sued. Are you referring to a law firm that contacted you? If so, would that be a lawyer who is seeking to represent you? If that is the case, I always say, if you can afford a lawyer, and if they are willing to fight rather than settle, then by all means use them.

If, on the other hand, you are saying that you read the notice that was left, and it is from the company trying to sue you, then it would seem that the collection company is about to file suit, if not already. My personal opinion, I would sign for the mail, and let the games begin. However, if they have not sent you notice by certified mail, return receipt requested, then you have not been properly served. Does this mean that they won't try to still go ahead in court with a suit? No. Most likely, they will try to get a default judgement against you anyway they can. That's the kind of slime balls they are. So, if you have not been served by certified mail, or by the sheriff personally handing you the summons, they have no right to go to court without you. They are still going to try, so if I were you, I would make arrangements to sign for the summons, then follow the steps I outlined in my article. May as well take the bull by the horns and fight to win.

Good luck to you. Keep me posted.

Brian


plainjanedoe 3 years ago

Hi, I've been trying to sort through this information, which seems pretty helpful, but I do have a question. My husband is being sued (Illinois) by Midland Funding for a credit card debt that he had through Sears (or Citibank). Anyway, when you keep referring to the "original signed contract", I'm a little confused. I'm fairly certain that my husband applied for the card online. How does requesting the "original signed contract" work in this case?


e.m. 3 years ago

Brian,

I want to understand better this one, too. Is this what I think it is?!:

I think this: The 'original signed contract' is the contract between the collection agency and the Debtor. This contract does not exist, because the Debtor did NOT sign a contract with the collection agency. Therefore they can NOT produce it.

It does NOT refer to the original contract between the Debtor and the 'original creditor/credit card company'

Did I understand right ???

Thank you.

Also, thank you for being so prompt and very detailed in your answers, everything seems so easy now in thinking to deal with debt collectors.

e.m.


e.m. 3 years ago

...OR..it is about ANY 'executed contract' in Plaintiff's possession: it can be the contract between original creditor and defendant or the contract between debt collection agency and defendant.

in both cases, the collection agency will have hard time to produce the contracts.

e.m.


e.m. 3 years ago

...and...in fact, 'this' is the main purpose: to ask the Plaintiff=Collection agency for evidence they can NOT produce. This will help to win the case in court.


e.m. 3 years ago

Okay, I got it - by reading very carefully the phrase in the 'Request for Production'.

The question asks if the Plaintiff (Debt Collection agency) has in his possession the original contract between the original Credit Card company and the Defendant - and if in this contract, there are set forth terms that the Defendant agreed in any way to have a business relationship with the Debt Collection agency - as a continuation of his relationship with the Credit Card company.

I hope I am right.

Sorry for posting so many posts.

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

When the request for production asks for a copy of the original contract between you and the original creditor, the collection company must produce that contract, whether it be a paper that you signed and returned by mail or a verbal agreement that was transcribed from a phone call.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear plainjanedoe,

A contract can be entered into by signing a paper document in the presence of all parties involved, but, there are many other ways to sign a contract, as well. In this digital age, we have made it possible to sign contracts online, to sign contracts by giving verbal agreement over the phone, and still other methods exist. In all cases, a contract is binding only as long as there is poof that the contract was entered into. Any contractual dispute that ends up in court for adjudication is going to require proof of contractual obligation in order to win for the party claiming its protections. Thus, if a collection company wants to claim that someone owes them money due to a contractual obligation, then that collection company has to prove in court that there was a binding contract between the collection company and the individual from whom the collection company expects to derive money. The collection company, if you read my article, is going to have to show all of the proofs of ownership, such as payments you made to them. The request for production puts the burden on the collection company to show the court why they own the debt and why you should pay them instead of the original creditor.

Hope this helps. Good luck to you.

Brian


Josh 3 years ago

Brian,

Not sure you remember me but I had received a civil summons but no court date etc. for an old credit card debt. I answered the summons and sent it to the plaintiff’s attorney within the 30 day timeframe and even sent it certified and via UPS so that someone would sign for it and so I could track it. I got the certified postcard back so they did receive it but I have yet to hear anything from them. It has been over 2 weeks. I wondered does the plaintiff have to respond to the defendant in a certain timeframe after the defendant “answers” their complaint questions. I just want this to be over and until it is, I am thinking about it every day.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Josh,

Well, some things don't get over as fast as we wish. Facing them, taking control of the situation, and putting up a good fight, even winning, all add up to character building. So, hang in there. Don't throw in the towel and give up.

The summons is merely a discovery phase that the attorney for the plaintiff is using to try to gain the upper hand by getting you to say something that they can hang their case on. I don't think there is a clock ticking on when they can actually file a suit, but I would think that they will either file one soon, or pass on you completely based on your answers to their summons. Don't count on them going away.

Once they file suit, the clock starts ticking again, and you will want to file your request for production. If it all comes to it, I think you will know enough if you have read my article and read some of the experiences on here, such as the one Mike recently posted. Do your homework, don't be afraid, and prepare to defend yourself well.

Best wishes,

Brian


Josh 3 years ago

Thank you, Brain. This site has been an incredible help and yes, I have saved this to my favorites so I can continue to review it. I hope to have my ducks in a row since if I go to court, I am representing myself. I will have to let you know how things turn out. I guess there is probably no way they will just go away!


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Josh,

You are very welcome, and thank you for your kind words. Here's hoping once they get your request for production they head for the hills and never look back. Take heart in all that others who have written here have accomplished while facing the same battles. There is hope.

Keep me posted. I hope you win.

Brian


ccmess 3 years ago

Hi there, thanks for taking the time to help others - I have a bit of a mess but I'll try to be brief, my debt is in the UK so I know its all a bit different but I'm hoping that your advice will be able to help me - I have CC debt (barclays) and personal loan debt (Egg) originally taken out in 2003. I've been in and out of trying to pay the debt collectors over the years. In 2010, I gave up, moved and have ignored them ever since. At this point I have no idea how much I actually owe vs how much they are saying I owe. The mail gets forwarded to me so I have the bills. Now, obviously I have entered many different "contracts" by trying to "do the right thing" and pay my debt.

At the moment, I have documentation from 2 debt collectors Lowell (representing egg) and APEX(representing barclays). I am desperate to get this resolved once and for all so I can move on with my life BUT I feel I have the right to see what I actually "spent" and "paid" over the years...however, I feel like a complete moron for not keeping my own records (as you know, it's is just so stressful I had to just go into denial).

BTW - Lowell have just sent a letter saying they are sending me on to another company called RED.

I don't think the companies are as corrupt over here but do you think that I should be able to get a full history of my charges and payments? and can I dispute any interests and fees? Just so that I know I am paying what I feel I "owe"? If they cannot provide me with this information, what should I do? I've already paid more than half of the loan down(plus interest!)

Just an FYI as I read other people's stories...I've been in default/debt since about 2005/06. In 2009, even though I had letters from collection agencies and had gone in and out of debt management plans, I contacted Barclays directly and they said they were willing to "re-open" my cc account if I agreed to accept the debt back "on the credit card" with an interest rate of xx amount. Basically - they were trying to get me more in debt by giving me the original cc back with debt on it already PLUS have to pay monthly interest! Seriously.


Joe Merla 3 years ago

Hi Brian,

Thank you for the article. I found it through a Google search as I am currently being sued by SECURITY CREDIT SERVICES, LLC for a debt I don't believe belongs to me anymore. Anyway, I followed your template and just today I sent via Certified Mail a REQUEST FOR PRODUCTION. A copy was also sent to the court, specifically the Judge that is assigned to my case.

It seems as if I follow this method, the lawyers back off and go away. How would I know that this is the case? Would they just simply not show up to court or would I be informed by the court/judge that the case was dismissed?

The lawyers also sent me a Demand for Discovery with about 5 questions pertaining to my alleged debt owed. I feel that if I answer any of these questions, I would be incriminating myself and would end up losing this case. Should I answer back by simply denying every question or should I ignore it, because it wasn't sent to me via Certified Mail?

I have a court date set in early March, but I feel that I need more time to prepare my case. Am I allowed to reschedule my court date?

Thanks again...I have also been reading the feedback you are giving to others as a tremendous help to my case.


Bjannnjo 3 years ago

I am concerned. I had read your page and its instructions after I have spoken to two debt collectors. None of which I have given my bank account information too. However, I have talked to them about payments. None of which I could afford at this time. I have asked one to send me a letter so I could verify. Have I screwed myself? What should be my next step?


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Bjannjo,

It won't matter if you gave them your banking information or not, because, if they got a judgement against you, it would not be impossible for them to get that information next. The fact that you have talked to these creditors may, or may not, mean that you shot yourself in the foot. It all depends on whether or not you gave them a verbal agreement that was recorded. They have to prove that you did enter into an agreement with them to pay. If they have this, then, yes, it may make life a little more difficult for you, but don't give up. Proceed as if they do not have this, and try for a home run with the information gained from my article. If you have the ability to hire a lawyer, by all means do so. If not, then still put up a good fight. You have nothing to lose for trying.

Good luck to you,

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear ccmess,

Since I am not versed in British law, and since it does vary greatly from our laws here in the United States, the only thing I can say is to research your laws to see where you have any similarities. One site I could recommend as a starting point would be these two links:

http://www.oft.gov.uk/shared_oft/consumer_leaflets...

http://www.oft.gov.uk/about-the-oft/legal-powers/l...

From the little that I have read of your laws, you are entitled to a full explanation of any and all charges that any collection company claims you owe, so this may help you some. If you lived in the United States, I could give you more advice, but the Fair Debt Collection Practices Act is a United States law that does not apply outside our country. I sincerely hope that you can find something in your laws that is similar.

Best wishes to you,

Brian

P.S. If all else fails, if you can afford an inexpensive lawyer who specializes in debt relief, I would seek their counsel.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Joe,

Glad you found my article, and I hope it helps. You did the right thing by sending a request for production. Will this make the lawyers for the plaintiff go away? Not necessarily. Some of them go away and pick fights with people who don't know their rights, and some call your bluff and go to court, or wait and file an appeal when you win by default. So, it ain't over till it's over.

You asked: "How would I know that this is the case? Would they just simply not show up to court or would I be informed by the court/judge that the case was dismissed?" You have a court date, so it is not over until you go to court and win. The day of the court hearing, you will argue your case, and if the judge likes what you say, he will tell you that he is awarding judgement in your favor. If he does that, it is over at that level. The plaintiff could still file an appeal. You want to ask the judge for a Judgement for the Defendant. That makes it a little harder for them to appeal. The judge gets the last word, so, if he gives you this, you may never hear from the lawyers for the plaintiff again. If he simply dismisses the case, they have an easier time filing an appeal, and may do so just to see if you are going to have the ability to put up a fight at the higher level, because without a lawyer at that level, you are most likely going to lose. If you win in the lower court, and it gets appealed, raise the money somehow, but get a professional lawyer to represent you.

You wrote: "The lawyers also sent me a Demand for Discovery with about 5 questions pertaining to my alleged debt owed. I feel that if I answer any of these questions, I would be incriminating myself and would end up losing this case. Should I answer back by simply denying every question or should I ignore it, because it wasn't sent to me via Certified Mail?"

If the letter was not sent to you via certified mail, yes, it would be tempting to ignore it, and legally, you could. The call is yours. What would I do? I would answer those questions just like Mike a few posts earlier did. Don't incriminate yourself. They have to prove their case, so make them do that. Every question that you get with regard to former debts, you simply want to answer with the statement: Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim.

You wrote: "I have a court date set in early March, but I feel that I need more time to prepare my case. Am I allowed to reschedule my court date?"

You can petition the court to grant an extension. Call the clerk of the court and ask them their procedure for this.

Hope this has been of some help to you. Best wishes,

Brian


gail641 profile image

gail641 3 years ago from Mason City

Sounds like really good advice. I've received collections letters in the mail from Law firms in the past. I went through bankruptcy a few years ago. This is great advice for anyone who gets collection letters from Law Firms for credit card debt.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear gail641,

Thank you. The material in my article has helped a number of people, which makes me very happy. It is sad when I realize that tens of thousands of good and innocent people are driven deeper into debt by greedy collection companies, so, anytime that my article helps prevent that, I feel that my article was not written in vain.

Best wishes,

Brian


gail641 profile image

gail641 3 years ago from Mason City

Your welcome. Helping people is the best thing anyone can do.

Best wishes to you, too. Gail


plainjanedoe 3 years ago

I just wanted to say thanks for all of the advise in this column and clarifying a lot of questions and concerns. My husband went to court today ready to fight a collection agency, armed with information from your advise. Fortunately, my husband's appearance alone seemed to be enough for the plantiff's attorney to ask for the case to be dismissed. There wasn't even a fight. I guess this is a good thing, but now I'm wondering, even though the plantiff's side asked for the case to be dismissed, does that mean they also can't appeal? Also, any idea if this collection agency can sell this debt to another collection agency and if they can sue on the same debt?


Naphleon 3 years ago

Based on your response, I went ahead and signed for the papers. Portfolio Recovery, Associates claims they were "assigned" this debt from Capitol One on 09/13/10 and states that "before the instition of this action Plaintiff's assignor and Defendant had business transactions between them and on 08/14/10, and that they agreed to the resulting balance." Then the complaint alleges that Capitol One sent me a statement (they provide a copy of said statement) and claim that i didn't object to the statement.

My first question is, is there a way to verify if Portfolio Recovery actually bought this balance from Capitol One? Also, how can they prove that I ever recieved the original statement from Capitol One? Lastly, when I'm creating the Request For Production that you've provided for us, do I list Capitol One or Portfolio Recovery as the Plaintiff and/or for item #2 (copy of the executed contract)?


BW 87 3 years ago

This may have been addressed in your previous comments, but I can't read through every one of them. I was served a SUMMONS AND COMPLAINT today and want to answer it properly... But I don't know exactly how to type up an ANSWER. Any suggestions? Thanks.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear BW 87,

You don't have to read every comment posted on here to know what to do next. Simply read my entire article, and it should become clear. If you were served a summons, then you want to file with the court stating that you intend to defend yourself and that you will be appearing. Then file a request for production with the plaintiff, and send a copy of that to the court. Make sure you send the request for production certified mail, return receipt requested. This will let the plaintiff know that you are going to put up a fight, and that they are going to have to produce an awful lot of proofs. They may decide it is not worth pursuing. But, if they do pursue it in court, do your homework. Study my article well.

Good luck to you,

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

plainjanedoe,

You are welcome. I am always happy to be of any help. Regarding the fact that the plaintiff asked for the case to be dismissed, if it was dismissed without prejudice, it could mean that the plaintiff attorney wants to engage in legal trickery and file an appeal in a higher court wherein your husband would not be able to defend himself well without legal training. If this becomes the case, absolutely hire an attorney to get the appeal quashed.

If you never hear anything again, consider it over.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Naphleon,

You wrote:

"My first question is, is there a way to verify if Portfolio Recovery actually bought this balance from Capitol One?"

Make them prove it. Send a letter of interrogatory demanding proof. And if lack of time prevents this, then attempt to get this brought before the judge in court. They absolutely have to prove this.

"Also, how can they prove that I ever received the original statement from Capitol One?"

Again, request proofs.

" Lastly, when I'm creating the Request For Production that you've provided for us, do I list Capitol One or Portfolio Recovery as the Plaintiff and/or for item #2 (copy of the executed contract)?"

Whoever is filing the suit is the entity to whom you send the request for production. It does not matter who they say they represent, you request production from the entity filing.

Hope this helps,

Brian


Niloo 3 years ago

Hi Brian

I wish I would read your article 2 months ago I had a balance with Chase bank about $4600 and the MCM collection agency had bought it from chase,I served by a person one day in my drive way and they gave me an envelope and some papers and a curt name that I would show up and file my respond I really did not know anything so I went to curt and filed my answer that I do not have this money and something like this,today was my curt and I lost the case in the curt room and now I have just 10 days to appeal the case or just wait for collection agency move,I have 2 little kids at home and am so worried and they said they even can take my home or anything I don't know can I appeal now or what is the best fr me to do?I am truly thankful for your advise,god bless you.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Niloo,

I am sorry to hear about your situation. The best thing you can do now is search for an attorney who will take your case. Research free legal services to see how you can get an attorney who will take the case for free, in case you cannot afford to get an attorney. But, by all means, get an attorney, because you might still be able to win.

Much will depend on what you said in court. Since I have no idea what you said there, all of it will be on record and can be used against you in the appeals process. So, without waiting, talk to an attorney about your case.

You should know that anyone who says that they can take your home is full of crap. They cannot take your home, they cannot take your car, they cannot take your clothes, and there's a whole lot more they cannot do, so don't let them scare you. They can go after your bank account, and they can garnish wages, but that is about it.

Good luck to you, and best wishes.

Brian


Nioo 3 years ago

Thank you very much or your help,the person who was in the court room on behalf of them suggest me to call them and negotiate with them before 10 days,in the court room I just told the judge that I am not sure this crdit card is mine and I need to see my contract and signature,judge showed me the documents that they presented to the court and they were just bunch of bank statements,judge told me this is your address and name on this statements ,but I did not admit it's mine,the only reason they won the case was I did not ask for production and just went to the court ,one more question I have a non residence property(rental property)on my name,can they go after that?I live is state of Texas.


StacyH 3 years ago

I thought debt collectors were not suppose to call your place of business? They called my business line and left a message. Are they able to do it if you own the company. They had to have googled it or looked on my site because that is the only place that it is located. These people really do their research because it is a digital online phone number


Naphleon 3 years ago

Thank you for your continued guidance, Brian. I filed my defendants response to the complaint, along with a request for production today. I was told by the clerk at the courthouse that I don't have to send the stamped copy of the documents via certified mail to the attorney that is representing the collection agency, as he said I just need to put the stamped copy in the mail using a regular delivery. He had commented on this because I had prepared a certified letter mail receipt form for the post office but when he saw it, he said I didn't have to send it to the Plaintiff via certified mail. What is your opinion on sending the documents via certified mail vs. regular US mail?


patriot762 3 years ago

Brian,

Thank you for an excellent article concerning credit card and debt collection. Having spent the last few weeks on the internet looking for answers, advice and a defense I can say without a doubt this is the best article I have read. The free template was a nice gift to us as well. I am currently involved in a cc lawsuit (b of a)from a debt collector (asset accept. llc). Arbitration is set for next week 2-20. I have filed the answer letter as to question the legitimacy of the said debt and legal ownership, etc. According to the filed lawsuit the plaintiff does not have the correct amount or account #. I plan on using the above template for my defense. The AAA called and said i have two more days to submit a defense. Am I missing anything? Any advice? Thanks again for your help to the "people"


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Patriot762,

Thank you for your very kind comments. I hope my article brings success to your search for relief from these companies that are pursuing you.

When you say the AAA called and said that you have two more days to submit a defense, I am not sure who the AAA is. If someone is saying that you have two more days to submit a defense, they are not correct. Your defense will be shown in court when you demand proof of their claims. Your defense in advance of that is everything that I have written in my article, and that is your request for production. If they have not provided proof for their claims, without which you cannot answer their demands, you simply claim that: "Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim."

I am sure that you kept no records, so you have to rely on the collection company to produce proofs for all their claims, and you know from my article what those proofs are.

Are you missing anything? As long as you have studied my article, you should know what you are going to need. Study it well, know it well, because it is the blueprint people have used to successfully win their cases.

Good luck to you,

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Naphleon,

Regardless of what that clerk said, right or wrong, I always advise using certified mail, because you have proof that you requested this. Without it, you have no proof that it was sent, or that it was received. Trust me, in court, if they could claim that they did not receive your request, you would be in the undesirable position of trying to prove to the judge that you did. And how do you do that? And if you cannot, what then? It gets messy. Send it certified mail, return receipt requested, because once they sign for its delivery, the burden is now on them to comply. They cannot say they did not receive it, and they have to produce the documents you requested.

Trust me, I would rather arrive in court with "over-kill" in my briefcase than "under-prepared." If the judge says to me, "You say that you sent a request for production to the plaintiff?" And he then turns to the plaintiff and asks the obvious question, and the smart plaintiff says, "Your Honor, we received no such request." The ball is back in your court, and you had better be a good tap dancer if that happens. Whenever I have sent any type of legal materials, I have always covered myself with all the proofs I might need if the situation escalates to court, and one of those is multiple copies of all documents (in case they get lost) and certified mailings.

There's my vote - certified mail, return receipt requested. As the old saying goes, it is better to have it and not need it, than to need it and not have it.

Good luck to you,

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

StacyH,

Debt collectors may not mail anything to your house that identifies them as debt collectors on the outside of the mailing, nor can they send postcards which can be read by others. They may not question anyone else about you or your debt, and they may not call your place of employment. It gets a little tricky if the place they call is your own business, and you are a sole proprietor. If that is your only number, they may or may not be able to call you there (gray area), but they cannot call and leave a message on your phone if it is a public area, and they identify themselves as a collection company for all to hear.

The fine line for all of this is simply that they cannot embarrass or humiliate you by exposing your alleged debt to the rest of the world. It is a private matter, and they must keep it between you and them. That is the basic guideline. This is covered in the Fair Debt Collection Practices Act.

You may also want to research the laws in your state with regard to what your state permits a collection company to do when it comes to communicating or making contact with you.

Good luck to you,

Brian


patriot762 3 years ago

Brian,

Sorry, I should have been more specific. The AAA is the Arbitration Association of America. Perhaps they are either wanting me to accept or deny said claims by the plaintiff. Although I already denied their accusations in the answer letter. I am located in the Tucson, Arizona. I was told arbitration was a cheaper, less formal alternative and the courts have sent the case there. I will study and memorize all that has been written in the above article. Thanks again for you help it is much appreciated.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Nioo,

The judge cannot advise you. So, do not put too much into what he says or does when you are talking to him in the situation you described. The judge cannot act as legal counsel when you are asking him questions. He cannot defend you, so you can only go on so much of what happened when you spoke to the judge. Also, you do not say whether this was a private conversation with the judge outside of the courtroom, or a courtroom setting where you stood before him as a defendant under oath. These are two entirely different settings, one allowing for some leeway, the other none.

Naturally, the plaintiff attorney is going to tell you to call them within ten days and make payment arrangements. That is exactly what they always will do, because that is what they are getting paid to do - bring you in, make you pay. And the answer to them is, no, you are requesting proofs...and you know from reading my article what proofs we are talking about.

If the judge is allowing you to have a new court appearance, and it is in the same court as the first hearing, then you should be able to defend yourself if you want to. Here, I always advise people, if you can afford an inexpensive attorney, by all means, obtain the services of one. If you cannot, then you can still win, as others who have read and used my advice have found. But, if this is in the court of appeals, or any higher level of appeal process, you should definitely get a lawyer. The appeals always go to a higher court than the simple court where these are first filed, and the higher courts operate on a tougher set of regulations. For that level, you need proper legal help.

As for your "non-residence" property, research the laws of your state to see what can be attached in collection settlements there. I know wages and bank accounts can be attached, but non-residence property, that I am not sure. I would Google the state of Texas and their legal actions by debt collectors. My guess is that any property in which you do not reside may be attached to settle debts, with any amounts collected from liquidation of that property that are over and above that debt being owed to you. But, I am not a lawyer, so I am going on what I have studied. The ultimate answer should come from a licensed attorney. The best way would be to locate attorneys in your state who specialize in debt relief and bankruptcies, and simply ask them until you find one willing to give you a free answer.

Best wishes,

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

patriot762,

Since it seems from what you wrote that the Arbitration Association of America is involved, I would have to assume that this is similar to going to magisterial court. If this is the case, then I would follow all the same methodology that I outline in my article. If you cannot get satisfaction at that level, then it may go to a magisterial court, and you would simply repeat the same process - demand for proofs from the plaintiff. After all, the burden of proof is on them...that's the law. However, make sure you know what level of court this gets moved to if you do not arrive at a win in the arbitration process. If they do not satisfy your request at the arbitration level, and then somehow arrange for this to move out of magisterial court and into some higher court, talk with an attorney immediately and seek representation. Higher level courts are too tricky for the non-trained.

Good luck to you,

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

patriot762,

My answer to your question is posted down a few spaces.

Brian


patriot762 3 years ago

Brian,

Thank you again for your advice. It has been very helpful. I will let you know how it turns out. Have a great day and may God bless you.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

patriot762,

You're welcome. I look forward to hearing good news from you.

Brian


Niloo 3 years ago

Thanks for your help Brian,I searched Texas law and yes they can go after my non-residence property which I do not want this,If get a lawyer I have to spent 1-2 k and ate the end I am not sure my appealing get win,what do you think if I call their attorney and offer them monthly payment of $100 for 6 month to settle this case?I mean just %15 of the balance!!!I am not sure they agree but I will try my chance,plus do you know how long does take time for them to find out about my assets?


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Niloo,

Before you offer anything to them, take the time to research debt relief lawyers in your area. You can find one who will help you for less than $1000, and the investment will be well worth it in the long run. A good, and inexpensive, lawyer can make this go away for good.

If you contact the collection company and make an offer, they are going to record that, and they can use that offer in court. So, personally, if it were me, that would be my last resort, but, if you think that you can afford $100 per month for six months, will never miss a payment or fall behind, and you are certain that they would accept this as full and final payment of the debt, then that is a decision that only you can make.

If 15% of the debt is what they offered to settle, it sounds reasonable to me, but if this is something you want to offer them, my gut feeling is that they will record your making the offer, and they will demand much more. Collection companies are notorious for playing hardball games, so I do not like them, and I certainly do not trust them. My best advice is always to get a good lawyer. I have seen lawyers take these cases for $600, and even take payments on a monthly basis on their fee, so I would look around and see who is out there before I threw in the towel and made any arrangements with any collection company.

Brian


Naphelon 3 years ago

Thank you Brian. That's exactly what my gut was telling me! I'll keep you and the forum posted!!


Bia031@aol.com 3 years ago

Just signed a summons 5 days ago for lawsuit of credit card debt. I read your article, but I'm not quite sure how to respond initially to court and attorney


e.m. 3 years ago

Brian,

If you make an offer to a 'debt collection agency' - isn't it that this will set a new start to the 'statute of limitation' for the debt and for the debt collectors to sue?! - even it is recorded only during a telefon conversation with the agency? OR only a 'payment' will restart the clock...?

Also, i want to tell to everyone here at this forum that IT IS OK to send 'certified' and 'return receipt with signature delivery' mail to a P.O.BOX. I did it and it worked.

I believed in the past that this is not possible - and many people possibly believe it too. But it is.

Many collection agencies have only P.O.Box as mailing address.

The mail person leaves the notice in the P.O.Box - then whoever picks it up goes to the counter at the Post Office and sign for it.

Also, it is possible to do this 'online' these days - the Post Office offers this service online and in this case, the delivery signature will be an 'electronic signature' online and all this process can be printed as a proof of delivery.

I thought this would be of some help to this forum readers.

e.m.


sokolov 3 years ago

Just found this site. Thanks for the information. I currently have 4 credit cards charged off with an original balance of $65k. The debt has been sold many times to various collection agencies and now the total is reported as $100k on my credit report. It looks like multiple reportings from various collection agencies and interest they are trying to tack on. Anyway, I stopped making payments 3 years ago on these cards and my strategy so far has been to ignore all collection agency letters and calls. No dunning letters, nothing. My overall strategy is to ignore them until the statute of limitations run out and then let them fall off my credit report in 2016. So far, so good, but if it comes to a lawsuit, I will use the info you provided. Does this sound like a good strategy? I've read a lot about fighting back, and this seems like the best approach to me.


ash01234 3 years ago

Hi Brian

First, I want to say thanks for your post. I receive a letter from the court state I was being sued and I needed to attend a magistrate hearing in February. So I did everything you wrote( answer and request production of documents). The collection company send me a Bill of Sale and a paper that had my name and account on it. The Bill of Sales had a BOA header on it and also a signature. The Bill of Sale didn't had any of my information, it just state Cavalry bought loans and have all rights to it. On the next piece of paper, there was my name, account, amount, and date(which look like it was type or cut and paste. Do know that the account on this paper does not match my account from BOA). So it sound like a easy win.

Yesterday was my magistrate hearing. There was about 50 people waiting. 5 including me, was there for a hearing, and the rest was there for a payment review. Do know that there was over 100 cases that went into default because the defendants didn't show up.

Well anyways, a lady called me in, and told me she is the attorney that is taking my case. So I ask, where are the other lawyers that was suppose to be there. She reply I am their assistant and I will be taking over all the cases here today. So I told her, "I'm not gonna speak with you" and she reply "well let's take this to the magistrate". So we did. The magistrate told me "she is in the lawyer place, and the only thing you can do is either talk to her or go to trial.". So I said let's go to trial. So I waited an hour and was called in. It was the magistrate, the lawyer assistant, and me in court.

Here comes the sucks parts. The plaintiff presented the bill of sales to the magistrate and said that the defendant owe the amount stated in the affidavit. The magistrate then ask me, if I had anything to say. I said yes(have no knowledge etc.). I also said I do not know what goods or service that was provided to me by Cavalry. The magistrate then look at me and said "well you use the credit card, and it said here on the bill of sales that Cavalry owns all rights to the loan." This is when it shift from the plaintiff vs defendant to the magistrate vs defendant. I ask the magistrate "where on that piece of paper(bill of sale), do you see where Cavalry own my account?" He then stated this is the bill of sale". And then i said "To what, your loan? It doesn't have my name or information on it.". This whole time, the plaintiff was just sitting there not saying anything. From the beginning, it felt that the magistrate had already pick a side.

Well in the end, the magistrate told me, he will review the case and make his decision by today and mail it. I already no he is gonna find in favor of the plaintiff so I am prepare to appeal it, and go in front of the judge. I was a little upset but knowing my account from BOA is not the same to the collection company give me sense of relief. And also the bill of sale that does not have my information on it.

I will keep you posted with the results.

Ash


FL-girl 3 years ago

Dear Brian,

You are doing an excellent job on this hub. I have learned so much the past couple of days. I have read just about every comment on this page so far. I have a couple of questions.

I got served yesterday by UNIFUND CCR LLC at my new address. They have my old address on the civil action summons and the person who delivered did not have it in an envelop. I thought that was very strange. I'm getting ready to answer the summon, but I'm not sure if I should put my new address on my answer. Also, they have someone claiming to be the employee of CITIBANK ,who is the original creditor, signed the affidavit claiming first hand knowledge. Is it okay to ask for that person to appear in court in my answer? I plan to follow your exact outline above to request for proof. The statements attached have my old address on them. If judge asks if those addresses belong to me, should I say yes or simply state that I don't recall for sure.

I live in Florida and I'm not sure what my statute of limitation is. I tried to find it online but couldn't find it. Someone told me it's 4 years, but I not sure of that. In my request for production, I plan to outline it as follow:

From the complaint page titled “Allegations as to all Counts,” I will answer each line by line below:

1. Deny. Please produce any credit application signed by defendant.

2. Deny. Please produce a copy of the executed contract in CITIBANK's possession setting forth the terms Defendant is alledged to have agreed to in connection with the card at the beginning.

3. Deny. Please provide a copy of all statements from the beginning of time to present.

4. Deny. Please produce detail regarding alledged charges by amount, type and date.

5. Deny. please provide proof that UNIFUND CCR LLC is assignee of CITIBANK as it relates to account 5..........4.

From the complaint page titled “COUNT I (OPEN ACCOUNT)” I will answer each line by line below:

6. Deny. Please provide proof of signed contractual agreement between plaintiff and defendant.

7. Deny. Please produce a copy of all statements from the beginning of time to present.

8. Deny. Please produce detail regarding alledged charges by amount, type and date.

9. Deny. (I don't know what to put for that one). It says, "Plaintiff repeats and reaffirms the allegations of paragraph 1 and 2 as stated herein.

10. Deny. ( I don't know what to put for that one either). "Defendant owes plaintiff of $6......, plus interest accrued of $5..... that is due with interest for money lent by of CITIBANK, NA, as it relates to account 54........4, to the Defendant."

Lastly it states "Wherefore, Plaintiff demands judgement against Defendant in the sum of of $$$$$$$$$$$$$$. plus interest acrrued of $$$$$$$$$$$$$$, plus costs incurred in connection with the collection thereof."

I'm trying to anwer each line by line in order to leave no stone unturned. Sorry for the long comment, but I have 20 days to answer this and want to get it done as fast as possible.

Thank you so much in advance.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Fl-girl,

Thank you for your very kind compliments. I'm glad my article is helping your situation. Sounds to me like you are doing a great job thus far.

I'll simply tack my answers to the end of each of your questions.

"I got served yesterday by UNIFUND CCR LLC at my new address. They have my old address on the civil action summons and the person who delivered did not have it in an envelop. I thought that was very strange. "

The sheriff may deliver the paper without it having to be in an envelope.

"I'm getting ready to answer the summon, but I'm not sure if I should put my new address on my answer."

Yes, your correct address is the best way to go on this.

"Also, they have someone claiming to be the employee of CITIBANK ,who is the original creditor, signed the affidavit claiming first hand knowledge. Is it okay to ask for that person to appear in court in my answer?"

Absolutely. Demand it.

"I plan to follow your exact outline above to request for proof. The statements attached have my old address on them. If judge asks if those addresses belong to me, should I say yes or simply state that I don't recall for sure."

Acknowledging your old addresses should not harm your case.

"I live in Florida and I'm not sure what my statute of limitation is."

It is five years for any written agreement and four years for any oral agreement.

"In my request for production, I plan to outline it as follow:

From the complaint page titled “Allegations as to all Counts,” I will answer each line by line below:

1. Deny. Please produce any credit application signed by defendant.

2. Deny. Please produce a copy of the executed contract in CITIBANK's possession setting forth the terms Defendant is alleged to have agreed to in connection with the card at the beginning.

3. Deny. Please provide a copy of all statements from the beginning of time to present.

4. Deny. Please produce detail regarding alleged charges by amount, type and date.

5. Deny. please provide proof that UNIFUND CCR LLC is assignee of CITIBANK as it relates to account 5..........4.

From the complaint page titled “COUNT I (OPEN ACCOUNT)” I will answer each line by line below:

6. Deny. Please provide proof of signed contractual agreement between plaintiff and defendant.

7. Deny. Please produce a copy of all statements from the beginning of time to present.

8. Deny. Please produce detail regarding alleged charges by amount, type and date.

9. Deny. (I don't know what to put for that one). It says, "Plaintiff repeats and reaffirms the allegations of paragraph 1 and 2 as stated herein.

Here you simply want to deny using the same reason you used for denying paragraphs 1 & 2.

10. Deny. ( I don't know what to put for that one either). "Defendant owes plaintiff of $6......, plus interest accrued of $5..... that is due with interest for money lent by of CITIBANK, NA, as it relates to account 54........4, to the Defendant."

Simply write: Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim.

Lastly it states "Wherefore, Plaintiff demands judgement against Defendant in the sum of of $$$$$$$$$$$$$$. plus interest accrued of $$$$$$$$$$$$$$, plus costs incurred in connection with the collection thereof."

No answer is needed for this one. This is a statement by the plaintiff.

So far, so good. Good luck to you and best wishes.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Ash,

Sounds to me like the magistrate was overstepping his bounds. You did the right thing, so hang in there and make them prove everything. If the magistrate rules in favor of the plaintiff, then you really should locate an inexpensive lawyer and be ready for them at the appeal level. Unless this goes before a magisterial court again, you may have bumped this up another level to an appeals court, in which case, the rules get a bit stricter. At that level, a lawyer knows how to maneuver through the mine field, so that is why you will need one....if it goes there. Let's hope the magistrate rules in your favor.

Keep me posted, and good luck to you,

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Sokolov,

Sounds to me like you like to use your credit cards. That's a lot of debt, so I hope the future holds a new path. Nonetheless, when debt exceeds a certain amount, the collection companies like to go after it, because it is worth their time if they can collect. To them, you may just be big game.

Sometimes, these collection companies like to tack on interest to make it more alarming to you. The bigger the sum they can make it to be, the more scared some people become, and that alarm can work in the favor of the collection companies. It is like they are telling you, "You had better pay us before this gets so high that you lose everything you own. You see how this debt is growing!" They want to make this alarming for you, and it may just make you think that you should settle if they offer you a reduction of paying less than the total. So, yes, they like to make all kinds of claims for more money that you originally owed.

I won't ask how you arrived this far out of balance and in debt to these companies, but if they have charged them off, then you should fall into the same category as anyone else. There will be a statute of limitations that varies from state to state. Once that statute has been exceeded, it does not matter how much you originally owed, it is not collectible by anyone. You are most likely correct to ignore anyone making demands, because the only ones who have any rights are the original creditors...and they wrote the debts off. So, it may just be that your strategy is correct.

Good luck to you,

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Bia031,

You want to notify the court that you intend to defend yourself. You need to do that immediately. Next, send the request for production to the plaintiff.

Read my article and study it well enough that you can recite most of it. You want this knowledge to be at your fingertips. My article should tell you everything you need to know. If you have more questions, don't be afraid to ask.

Best wishes to you,

Brian


sokolov 3 years ago

I had been trying to sell my house for 3 years with no luck, then lost my job. I tried to do the right thing and so I used my credit cards to live and to pay my mortgage which is how I got $65k in credit card debt. I didn't just charge up things for fun, I used them to survive for a year thinking I could sell my house and take the profit and pay back the credit cards. Once I got a job in another city, I still struggled to pay a mortgage, credit card debt and rent on an apartment. Another year on the market and still could not sell house, so my financial house of cards collapsed. After a total of 4 years on the market, I was forced to do short sale and lost all equity, but couldn't pay the credit card debt load so had to stop paying. To anyone else in this situation, forget about the mortgage. You are better off stopping payment on your mortgage than you are racking up credit card debt which you won't be able to repay. I tried to do the right thing, but since Wall St. destroyed the housing market, there was no equity left in my house which is crazy considering that market prices once had me up $400k in equity which is why I wasn't worried about $65k in credit card debt. Live an learn. I fell like a sucker and got screwed all around.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Sokolov,

You tried to do the right thing, and the blood suckers out there continue to rape, pillage and plunder. Wall Street cronies made a mess of our economy, and they are still raking in their huge profits. I have no love of Wall Street tycoons, because most of them make a living taking bread off of the tables of poor people. And when they let a debt go so that they can go rape somebody else, the parasitic collection companies roll into town to pick up the scraps that are left.

You, like so many others who were ruined by the Great Recession, tried to be honorable when these parasites are doing anything BUT being honorable. Rebuild your life, and don't worry about these blood suckers. Thwart them with every tool at your legal disposal. This is why I shared my findings in the article I wrote. It is time we as a people turned the tables on these collection company scams.

Good luck to you, and may your future be brighter.

Brian


Jennie 3 years ago

I have been getting calls from a debt collector for a 5k debt with Captital One, they just called my boyfriend. I figure they got his number because I am an authorized user on his Capital One account. Should I talk to these people? I have been dodging the calls. They say they are from a law office


Jennifer638 3 years ago

Hanavee, where can I obtain a copy of your "Request for Production"? Thank you!


Matt H 3 years ago

My summons has the CC company as the Plaintiff, is that the Plaintiff of record or is the law firm attempting to collect the debt (I am assuming they purchased the debt) really the Plaintiff? Any help would be appreciated. And thanks for the informative article.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Matt H,

A lot of collection companies use a variety of ploys to scare their victims, and they often use law firms for several reasons, one being that they can put the law firm on the outside of the envelope, because by law, they cannot put the words "Collection Company" on the outside of the envelope. The other reason is that it simply puts fear in the hearts of their victims. They want you scared into submission. The bottom line is this, the only person you owed the debt to is the original creditor. Any collection company can come along and try to get you to enter into a contract with them for the balance, but if you read my article, you know why you do not have to pay them, and you should also know how they can trick you into a contract with them.

Whoever is pursuing you is the plaintiff, plain and simple. It does not matter if they claim to be a law firm, if they are filing suit, they are the plaintiff, and you are the defendant. They may list your original creditor, but your original creditor most likely wrote off the debt a long time ago. The entity coming after you is not the original creditor, but a collection company, no matter how they represent themselves.

Hope this clears things up for you. Good luck to you,

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Jennifer638,

I illustrated the form for the Request for Production at the end of my article. Simply follow that format. You could photo copy it and re-edit it to fit your situation, or simply make your own using that template.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Jennie,

It is illegal for any collection company to call anyone but the person whom they claim owes the debt. If you cannot pay, it does no good to talk to them. Their job is to deceive and hurt. They are not their for your good, only their own interests. You have nothing to gain by talking to any collection company. When they get nowhere, they either give up, or they re-sell your account to another collection company, and the games start all over again. The only time I would talk to a collection company is if they were an office of the original creditor, I had the money to give them, and they accepted my terms. Otherwise, there is never anything to gain from talking with collection companies. If you read my article, you know what they are all about, and I don't think they deserve the time of day. They operate at the fringes of the law, and sometimes not even there. So, by now I think you know my answer. Me, personally, I don't have anything to do with collection companies.

Brian


Matt Constant 3 years ago from Punta Gorda, Florida

Hello,

Great article, read through some comments as well. Hopefully you will respond to me.

I am being sued by Zakheim & Lavrar. After doing a search on them I saw that they were listed by another blog as a major JDB and appear sketchy. I live in Florida.

My pretrial is on March 4th. I plan on attending and will respond to it on Monday.

My questions are this...

They listed Capital One as the Plaintiff. The only documents sent with my summons were the complaint (open account and account stated) and then an account summary dated from May, 2012. The only other document included was the notice of confidential information within court filing paper. I wasn't served until the 15th so I have not had a lot of time to prepare.

Do you think my chances of having the case dropped or dismissed would be high if I requested the original contract? It has not been shown to me yet. Also, since it is so close to the court date, is it not even worth asking for debt validation?

What should I expect at the pretrial?

I was thinking about putting in a sworn denial stating "this is not my debt. if this is my debt then it is not a valid debt. If it is a valid debt then it is not in the correct amount." I am being sued for $1100 for a $300 credit limit card. If not that, how should I respond before my pretrial?

I have not received any other communication from Zakheim & Lavrar except when this summons came. The summons was the first contact we had.

Any thoughts on how to proceed? I would really appreciate your input. I work for under $10 at an assisted living facility and cannot afford what they are claiming I owe. There is no way that I owe $1100. On my credit report it is listed as "charged off."

THANK YOU!!!


Matt Constant 3 years ago from Punta Gorda, Florida

Also, since the complain says "account stated" are they still required to show the contract?


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Matt Constant,

Firstly, the fact that the summons arrived late is reason enough to request a delay from the court. You are supposed to have at least thirty days in which you can respond to the court and file any requests with the plaintiff. So, you might want to ask the court to postpone your hearing. If it were me, I would want the delay so that I could send the request for production to the plaintiff in time to rattle their nerves.

But, part of me would want this to be over with anyway, so I would also see good in just going ahead with the date already set. No matter what you choose to do with this part, make sure that you notify the court that you are attending. Do that immediately. Then, very importantly, send the request for production to the plaintiff. Make sure you send it certified mail, return receipt requested. The fact that you have not had sufficient time to prepare will be a valid defense. You can tell the judge that you have not been given sufficient time to prepare, in case questions come up that you are not ready for. I really doubt that any will, but that is an ace to hold onto and to play when in need of it.

Study my article well. Know the material, and make notes to have with you in court. Two weeks ago, here is what Mike wrote regarding how he handled his situation:

Brian-

I can't begin to tell you how much your advice helped me today in court. The lawyer did show up, (Michael Ratchford-Scranton) He left me for last to mediate before the Commissioner came into the room. He called my name and asked me to step into the room where other attorneys were tricking people into payment plans. My heart really went out to them. Many of the people, who had the legal right on their side, were fooled into settling. Anyway, Ratchford's guy sat me down and began to look at the computer. He didn't say anything for about 2 minutes. He was waiting for me to put my foot into my mouth. The conversation went like this:

Me: Sorry but who are you?

Him: My name is John Doe (I don't recall his name at the moment)

Me: Sorry, but who are you?

Him: I am the attorney representing the Plaintiff

Me: Sorry, but who is this Plaintiff?

Him: Midland Funding, the ones that you owe money too

Me: No idea what you are talking about

He continued to look around the computer and then said:

Him: I can't seem to find the "Service"

Me: What's that?

Him: Doc that says you were served. Do you have the contract that was with the Statement of Claim?

Me: All I have is a piece of paper telling me to appear here today.

Me: I sent you a letter asking for a "Request of Production"

Him: Yes, I received that and you should have received my reply in the mail.

Me: I received nothing

Him: Ok, well it's on my desk and will be mailed right away with a copy of the contract and purchases. Now, how would you like to repay the money that is owed?

Me: I don't recall this account

Him: It's for the sum of $?????

Me: I don't recall this account

Him: OK, I have to speak to the Commissioner to see what he wants to do

Me: I know what I want to do. I want immediate dismissal. You are wasting my time

So, ten minutes later he was up front whispering to the Commissioner and the Commissioner said to him "But I must inform him of his rights." The Lawyer then turned to me and said "I have withdrawn the lawsuit, YOU MAY GO HOME." I then stood and asked to speak to the Commissioner. After waiting until everyone else's turn, I asked the Commissioner for a dismissal. He said that only a Judge could do that. I asked to see the judge because I wanted to make sure that Ratchford doesn't haul me into court a second time. The Lawyers face dropped. He looked pissed off. I then went down the hall and the lawyer did not follow! The judge changed the outcome from "Dismissed without Prejudice" to "Judgment for the Defendant." He did however say that they did have a right to appeal, but it was unlikely.

Brian, thank you again for your much valuable information and help here on this site. I really appreciate you taking the time to share your knowledge and help us. I don't think I could have pulled that off today without having first read you comments here.

I'd like to wish everyone else on this site GOOD LucK! Now, I have to wait to see if they appeal. I really don' think they will, but who knows?

Thanks again

Mike

I thought that was super, so read what Mike did, keep studying my article, and I think you will be fine.

Good luck to you. Keep me posted on how things turn out for you.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Matt,

Yes, they must produce that original signed contract. It has to be signed, it has to be your signature. No blank contract waved around in court will be sufficient proof, although that is a tactic some of them like to do. They wave around a blank contract and ask you if you ever signed this. Just remember to use this line: Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim.

Best wishes,

Brian


Matt Constant 3 years ago from Punta Gorda, Florida

Thanks for the quick reply.

I'd rather just get it over with on the 4th. Been stressing about it like crazy.

Should I ask for production at pretrial, or should I send out certified mail with return receipt before then?

At pretrial am I allowed to ask for production of documents?

Should my chances be pretty good if I ask for production of documents and deny everything?

I know if I file a sworn denial than they have to produce a witness. Should I do that before the trial?

Thanks so much!


Nancy7883 3 years ago

Brian

Have read your comments and they certainly make sense, however, I found information that I would like for you to read and comment on with regard to all: pdf. Proof of consumer indebtedness - FTC.

ftc.gov/so/comments/debt collect roundtable3/545921-00017.pdf.


Nancy7883 3 years ago

Brian

Re:Proof of Consumer indebtedness

This seems to be a written legal opinion from a Lawyer with regard to what the Plaintiff does and does not have to produce/prove regarding documentation in a lawsuit....seems that the burden of proof is actually on the defendant....look forward to hearing from you after you have read this opinion.

Many thanks.....


Jennifer638 3 years ago

Hanavee,

Do you know as of lately, does AMEX still hold on to their accounts and simply assign collection agencies and law firms to sue on their behalf or have they been selling off older (older than 2 yrs) charged off accounts?

Do you know if AMEX have been able to come up with proof of validation through discovery process? I'm trying to see what the likelihood of successful outcome if they were sued by AMEX. Thanks!


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

American Express will reimburse $85 million to about 250,000 customers to resolve accusations that the company violated federal law in its marketing, billing and debt collection practices, the company and the government said Monday.

The multiagency investigation of American Express included the Consumer Financial Protection Bureau, the Federal Reserve, the Office of the Comptroller of the Currency and the Utah Department of Financial Institutions. They discovered violations of consumer protection laws between 2003 and this year that started “from the moment a consumer shopped for a card to the moment the consumer got a phone call about long overdue debt,” Richard Cordray, the director of the consumer protection bureau, said in a statement.

The same problems that plagued the foreclosure process — and prompted a multibillion-dollar settlement with big banks — are now emerging in the debt collection practices of credit card companies.

As they work through a glut of bad loans, companies like American Express, Citigroup and Discover Financial are going to court to recoup their money. But many of the lawsuits rely on erroneous documents, incomplete records and generic testimony from witnesses, according to judges who oversee the cases.

Lenders, the judges said, are churning out lawsuits without regard for accuracy, and improperly collecting debts from consumers. The concerns echo a recent abuse in the foreclosure system, a practice known as robo-signing in which banks produced similar documents for different homeowners and did not review them.

“I would say that roughly 90 percent of the credit card lawsuits are flawed and can’t prove the person owes the debt,” said Noach Dear, a civil court judge in Brooklyn, who said he presided over as many as 100 such cases a day.

Last year, American Express sued Felicia Tancreto, claiming that she had stopped making payments and owed more than $16,000 on her credit card.

While Ms. Tancreto was behind on her payments, she contested owing the full amount, according to court records. In April, Judge Dear dismissed the lawsuit, citing a lack of evidence. The American Express employee who testified, the judge noted, provided generic testimony about the way the company maintained its records. The same witness gave similar evidence in other cases, which the judge said amounted to “robo-testimony.”

American Express and other credit card companies defended their practices. Sonya Conway, a spokeswoman for American Express, said, “we strongly disagree with Judge Dear’s comments and believe that we have a strong process in place to ensure accuracy of testimony and affidavits provided to courts.”

Interviews with dozens of state judges, regulators and lawyers, however, indicated that such flaws are increasingly common in credit card suits. In certain instances, lenders are trying to collect money from consumers who have already paid their bills or increasing the size of the debts by adding erroneous fees and interest costs.

The scope of the lawsuits is vast. Some consumers dispute that they owe money at all. More commonly, borrowers are behind on their payments but contest the size of their debts.

The problem, according to judges, is that credit card companies are not always following the proper legal procedures, even when they have the right to collect money. Certain cases hinge on mass-produced documents because the lenders do not provide proof of the outstanding debts, like the original contract or payment history.

At times, lawsuits include falsified credit card statements, produced years after borrowers supposedly fell behind on their bills, according to the judges and others in the industry.

“This is robo-signing redux,” Peter Holland, a lawyer who runs the Consumer Protection Clinic at the University of Maryland Francis King Carey School of Law.

Lawsuits against credit card borrowers are flooding the courts, according to the judges. While the amount of bad debt has fallen since the financial crisis, lenders are trying to work through the soured loans and clean up their books. In all, borrowers are behind on $18.7 billion of credit card debt, or roughly 3 percent of the total, according to Equifax and Moody’s Analytics.

Amid the surge in lawsuits, credit card companies are facing scrutiny. The Office of the Comptroller of the Currency is investigating JPMorgan Chase after a former employee said that nearly 23,000 delinquent accounts had incorrect balances, according to people with knowledge of the investigation.

Linda Almonte, a former assistant vice president at JPMorgan, claimed in a whistle-blower complaint that she had been fired after alerting her managers to flaws in the bank’s records.

The currency office, which oversees the nation’s largest banks, is also broadly looking into the industry’s debt collection efforts, focusing in part on the documents included with lawsuits. A spokeswoman for JPMorgan declined to comment.

The Federal Trade Commission is working with courts across the country to improve the process for pursuing borrowers who are behind on their credit card payments, mortgages and other bills. In a recent review of the consumer litigation system, the commission found that credit card issuers and other companies were basing some lawsuits on incomplete or false paperwork.

“Our concerns center on the fact that debt collection lawsuits are a pure volume business,” said Tom Pahl, assistant director for the F.T.C.’s division of financial practices. “The documentation is very bare bones.”

The lenders disputed the suggestion that they file lawsuits that include flawed or inaccurate documentation.

“We look at account records in our system to individually verify the accuracy of information before affidavits are filed and testimony is given,” said Ms. Conway, the American Express spokeswoman, who declined to comment on specific borrowers.

The industry has faced similar criticism over practices stemming from the housing crisis. Amid a surge in foreclosures, state attorneys general accused the banks of using faulty documents without reviewing them and improperly seizing homes. In February, five big banks agreed to pay $26 billion to settle the matter.

The errors in credit card suits often go undetected, according to the judges. Unlike in foreclosures, the borrowers typically do not show up in court to defend themselves. As a result, an estimated 95 percent of lawsuits result in default judgments in favor of lenders. With a default judgment, credit card companies can garnish a consumer’s wages or freeze bank accounts to get their money back.

In 2010, Discover sued Taryn Gregory for more than $7,000 in credit card debt. Ms. Gregory, of Commerce, Ga., had fallen behind on her bills, but said she had accumulated only $4,000 in debt.

After the suit was filed, Ms. Gregory, a 41-year-old child care assistant, asked Discover for proof of the balance. The resulting documents, which were reviewed by The New York Times, have inconsistencies. One statement, for example, says it was produced in 2004, but advertisements on the bottom of the document bear a 2010 date.

The lawsuit against Ms. Gregory is still pending. Discover declined to comment. Judges have also raised concerns about witnesses and affidavits.

In May, Michael A. Ciaffa, a district court judge in Nassau County, N.Y., challenged the paperwork signed by a Citigroup employee in Kansas City, Mo. He found that one document “has the look and feel of a robo-signed affidavit, prepared in advance,” according to court records. The case is still pending.

Emily Collins, a spokeswoman for Citigroup, said: “We continually review the effectiveness of our controls and policies for credit card collections, and ensure that affidavits are validated for accuracy and signed by Citi employees with knowledge of the client’s account. Citi Cards has a range of programs to support our clients who may be facing financial difficulty, and we make every effort to work with our clients to prevent delinquency.”

A review of dozens of court records showed that the same employee signed documents in cases filed against borrowers in three other states. In one lawsuit i


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Jennifer638,

I posted two excerpts, one from the New York Times that ought to answer your question, and the second portion is an article written by JESSICA SILVER-GREENBERG for Deal B%k. She wrote a very powerful and enlightening article on the subject, so it should answer a number of questions. Hopefully, nobody comes along to complain, so while it is posted, read it and study it well.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Nancy7883,

Unfortunately, I am not able to find the link. Nonetheless, I researched the best legal minds for the information that I wrote into my article, so regardless of what some article you read seems to indicate, I know what works in the courts, because I have used it successfully, and what I used was based on the findings of my article. Not only have I used this material successfully, but so have many others now, so if some "lawyer" writes an opinion to the contrary, I don't know that I would waste my time, personally, reading it, since it goes contrary to precedent.

Please read the article that I posted by Jessica Silver-Greenberg which was in the August 2012 issue of Deal B%k. It is a powerful piece, well-written, and anyone who has read my article can gain a lot of extra insight when they read her excellent article.

Hope this helps. Best wishes to you.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Matt Constant,

Because of the speed of the date of your trial, I would waste no time in mailing out a request for production to the plaintiff. Then, once you are in court, repeat the request. You can make that request any time that you are facing the collection company.

You don't have to deny anything. The burden of proof is properly on the plaintiff, since they are the ones making the claims. Remember the answer I wrote in my article: "Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim." Memorize that line. That is all you have to say if they cannot show proofs. Know what the proofs are. Blank papers are not signed contracts. If you have forgotten what they have to provide for proofs, then re-read my article. It's all there.

That one line is the denial you want to use, because you are not lying, you are saying that you have not been provided sufficient proof to form an accurate opinion; therefore, it leaves you no other choice but to deny their claims until such time as they can offer sufficient proof.

Hope this makes sense. Good luck to you,

Brian


Nancy7883 3 years ago

Dear Brian

Many thanks for your good and well researched information. I did read

Jessica Silver-Greenberg's article on B%k Deal....and agree with you that it is a very powerful piece.

Peter A Holland writes equally as well as Silver-Greenberg. He is a visiting law professor at the University of Maryland School of Law. You are probably familiar with his writings but if not, search on the University of Maryland's website for: Peter A. Holland: "The One Hundred Million Dollar Problem in Small Claims Court: Ro-bo signing & Lack of Proof in Debt Buying Cases"...very compelling, he addresses much of what you have mentioned with regard to proof of debt as well as the larger issue of the Plaintiff's having to produce very little evidence in SC Court....please let me know what you think and thank you again for your wise words.


Jennifer638 3 years ago

Thank you so much Brian for your article and great information!


Nancy7883 3 years ago

Dear Brian

I anticipate a lawsuit for credit card debt that is now with a collection agency, CACH LLC, (under the umbrella of a law firm) I am trying to gather as much information as possible to prepare for it...It will not be filed in the Small Claims Court because the "alleged" debt is greater than $5,000. While I have never spoken to anyone at the collection agency regarding their allegations, they have sent letters. I thought the SOL in my state was for 3 years, so I sent the agency a letter stating that it was beyond the SOL, only to find out afterward that credit cards are written contracts and therefore the SOL (5 yrs.) is still in effect.....I have also received a 10099-C from FIA, Services BOA canceling the debt, which I now know is hardly cancelled. I realize that I should not have sent them the letter but have I completely ruined any chances of a winning in court when the time comes?

Also, since it will be filed in the District Court, the burden of proof for both the Plaintiff and Defendant rises to a higher level - correct? Please give me some guidance and advice.

Thank you so much for your time....


Nancy7883 3 years ago

Brian

So sorry, let me also say that while I have never spoken with anyone at the collection agency, I have never sent them a payment as well.

Thought you might need this info with regard to giving advice.

Thanks again!


Nancy7883 3 years ago

Brian

Not sure what court the lawsuit would be filed in but not Small Claims, Circuit Court?.....might you know and what evidence must be presented on the Plaintiff's part!

Look forward to your wise and informed information....thank you so much!


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Nancy7883,

Here is the answer straight from the court system:

"Claims for $8,000 or less may be filed in common pleas court; however, magisterial district courts are less formal, less expensive and faster than common pleas courts. Also, you need an attorney in common pleas court. In magisterial district court, an attorney is not

required, but it may be advisable to have one present for certain types of cases."

These are the two types of courts in which these types of cases can be filed. The fact that most, if not all, of these are filed in magisterial courts would seem to me to indicate that the collection companies do not want the more intense scrutiny that courts of common pleas would bring to their shenanigans. I have seen some pretty shady, and even tortious, offences committed by collection companies in the process of suing their victims. In either court, the burden of proof is still the same, so the plaintiff has to provide the proofs you ask for in your request for production.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Nancy7883,

You are very welcome, and thanks for that additional information. At some point, I am going to have to find the time to read that article. It really sounds great. Once I do, I will definitely bring it here for some commentary.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Jennifer638,

You're welcome, and thank you for reading my blog.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Nancy7883,

If the debt is over $8,000 , it will be filed in a higher court than magisterial, so if this becomes the case, you definitely will need a lawyer. You may even find that a lawyer can keep this out of court and get the collection company to retreat...sometimes. Nevertheless, if the debt is higher than $8,000 , retain a good lawyer. You don't need an expensive one, just a good one, and definitely one who specializes in debt relief.

The statute of limitations is longer for written, as opposed to oral, contracts, and the statutes vary from state to state. Nonetheless, the fact that you simply told them that the debt was beyond the statute of limitations does not mean that you shot yourself in the foot. In order to totally fathom the impact, I would have to have read the entire original letter that you sent, but my guess is this: You can claim that you were denying the debt by simple statute of limitations, that you in no manner were acknowledging their ownership, nor did you agree to, or thereby acknowledge, any contractual relationship between you and the collection company. So, if push comes to shove, just remember this.

No matter what court this goes to, the plaintiff is the one making the accusations, the plaintiff, therefore, is the one who has to prove them. They have the harder battle. Still, any statement you make to your defense can be challenged, and for these challenges, you should be prepared to offer proof where necessary, or "plead the fifth," that is, know when you need to rely on this statement: "Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim."

Good luck and best wishes,

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Nancy7883,

I think you'll be fine.

Brian


e.m. 3 years ago

Hi Brian,

Why is this that a lawyer is needed in a higher court?! 'Why' is that the knowledge we have from your article is not enough to proceed in that higher court, without a lawyer ?

Are there more formalities that must be filled out for that kind of court? or it is about defending ourselves in court, face to face with the debt collectors' lawyers and not having the language necessary to speak to our defense?

I think that our defense strategy is very simple but covers exactly what's needed to prove that debt buyers are not the owner of the debt.

Thank you in advance for your answer.

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

The higher the court, the more stringent the demands. If you were in a traffic court arguing about a traffic citation, you would expect a lot of leeway as to what can be said, what can be admitted as evidence, and what kind of mistakes can be overlooked. Turn that around, and you are now standing in front of the U.S. Supreme Court arguing a precedent setting case regarding the rights of some religious sect to withdraw from paying social security taxes, and you have a totally different world of rules and procedures. Thus, when a case gets "bumped upstairs," more rules apply, and those rules need to be understood in advance. There is no rehearsing in front of the judge. Either you have a law degree, or you have studied law well, because the judge in this court will not tolerate mistakes or lack of legal knowledge. You will be overruled over and over again, told you may not speak when you thought you had a right to, and a clever attorney for the plaintiff will most certainly take advantage of your ignorance of legal requirements. It is in this level of court that the saying is proven true, "He has a fool for a client who represents himself in court."

Hope this helps make sense of it for you.

Brian


Nancy7883 3 years ago

Thank you for your insight, very helpful. I did receive a collection letter that stated I had 30 days for debt verification, I did not request a DV within that time period. They followed with another letter without this 30 day DV notice, and that's when I sent them the letter that stated the SOL had expired, and the debt cancelled by OC (received a 1099c from FIA CARD SERVICES).

My questions:

1.Can I ask for DV in a letter (certified, return receipt) since it is past 30 days?

2. Upon further reading, the 1099c was sent from FIA CARD SERVICES, a CA, not the OC. Have read that the 1099c has to be issued by the OC. Just need clarity on this in order to understand what I should do.

3. I will be hiring an attorney, may be very difficult in this small town, but I'll give it a go.

4.In the meantime, how do you obtain/request a copy of the laws for a specific state and the Rules of Civil Procedure. I want to become better informed even with a lawyer handling the case. I think being empowered is very important and education can be very enlightening!

Thank you so much for your generous offerings of help and advice. You are helping more people than you probably realize!

P.S. You do remember that I was mistaken about the SOL from my previous post to you!


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Dear Nancy7883,

When a collection company sends you a letter telling you that you have thirty days to verify a debt, you can file that in the circular file, because they do not have the authority of a court to give you such ultimatums. If a court tells you that you have thirty days, then you have thirty days to do whatever it is for which the court has set a time limit. But, a collection company telling me that I have time limits? Or else what? I don't take any threats from collection companies serious. They can put their money where their mouth is and take me to court. Then, and only then do we get serious.

You wrote that you received a 1099-C, which is a form from the IRS to show debts that you, as a creditor, wrote off, debts that are over $600. So, why is this collection company sending you a 1099-C? That I don't understand. Is this some bluff on their part to show you that the debt was cancelled at such a date as to make your claim of statute of limitations null? The statute, I believe, is from the time of the last payment on an account, not when it was finally cancelled, although these two dates are usually not too far apart. Still, the time of the last collected payment on the debt is the beginning of the clock. That is my understanding of the law. As one of my professors used to say, "I stand to be corrected."

Your questions:

1.Can I ask for debt verification in a letter (certified, return receipt) since it is past 30 days?

Yes, of course, but I would do that as a request for production that is sent only if they are suing you in court. If they are not suing you, then I would have no communications with them. You said earlier that you anticipated being sued. If they have not filed suit, and you have not received a summons, then I would have nothing to do with this collection company at all.

2. Upon further reading, the 1099-c was sent from FIA CARD SERVICES, a collection agency, not the original creditor. Have read that the 1099-c has to be issued by the original creditor. Just need clarity on this in order to understand what I should do.

As I mentioned earlier, the 1099-C is a form that the IRS issues, and it is for tax write-offs in business. If you are a creditor, and you have cancelled debt to a client in any amount over $600, then that form must be filed with the IRS. A collection company cannot do this, because they did not own the original debt.

3. I will be hiring an attorney, may be very difficult in this small town, but I'll give it a go.

Hire an attorney once you have been served with a summons. Until then, there is no need for one. For now, just research lawyers (maybe in another town that isn't "small") and their rates so that you will know who is the cheapest when the time comes to hire one...and then, only if you have been sued.

4.In the meantime, how do you obtain/request a copy of the laws for a specific state and the Rules of Civil Procedure. I want to become better informed even with a lawyer handling the case. I think being empowered is very important and education can be very enlightening!

Simply Google "Court Procedure" laws in your state. It will be fun reading.

You wrote: "Thank you so much for your generous offerings of help and advice. You are helping more people than you probably realize!"

Thank you for your thoughts. Yes, as it turns out, more and more people are reading this blog daily, and what originally was just a few hundred is now in the thousands, and this is spreading. Hopefully, this article will help save a lot of people from the miserable grasp of these blood suckers.

Best wishes,

Brian

P.S. Yes, I do remember that you were mistaken about the SOL from your previous post. Not a problem.


e.m. 3 years ago

Brian,

I understand, generally, that 1099-c form can be filed with IRS only by the Original Creditor, as a result of the O.C. cancelling a debt more than $600.

I have found this general information re: 1099-C, maybe it might be of some help to others. I have a question so in the end:

------------

"A 1099-C reports Cancellation of Debt Income (CODI). A lender is supposed to file a 1099-C form if it “cancels” $600 or more in debt. It files a copy with the IRS and is required to send a copy to the taxpayer as well. Four common reasons for filing a 1099-C are:

You negotiated a settlement to pay a debt for less than the amount you owed and the creditor forgave the rest;

You owned a home that went into foreclosure and there was a deficiency (a difference between the home’s value and what you owed on it) which was either forgiven or remains unpaid;

You sold a home in a “short sale” where the lender agreed to accept less than the full balance due; or

You did not pay anything on a debt for at least three years and there has been no significant collection activity for the past 12 months.

If you’re not exactly sure why you are getting one of these forms, you hopefully will see a code in Box 6 of the form that describes the “identifiable event” that triggered the lender to send this form. You can match that code up with the reasons listed on page 3 of Publication 4681.

Does this form mean I don’t owe that debt anymore?

Not necessarily. If you receive a 1099-C because you paid off the debt for less than the full amount due in a negotiated settlement, then clearly you don’t owe any more money. However, if the form was filed because you haven’t made payments for three years and they haven’t tried to collect recently, then you may still owe the debt. Your state’s statute of limitations may be more relevant in this type of situation".

More information can be found here:

http://finance.yahoo.com/news/1099-c-questions-ans...

---------

My question is:

above, you will read this:

"You did not pay anything on a debt for at least three years and there has been no significant collection activity for the past 12 months". I've read this also few other places on internet re: this matter.

But the Original Creditor charges off the debt after 180-200 days, generally speaking.

So - I do not understand how - after 3 years - an O.C. can file this 1099-c form? because, in my understanding, after approximately 6 months, most of the creditors charges off the debts. So, the only ones that can do this are the debt buyers, which are the ones that do not have the right to do this.

So, how can you deal here with IRS? how can someone make IRS believe that the debt buyer is NOT the original creditor and can NOT be treated as an original creditor?

Thank you.

e.m.

If only the Original Creditor can send 1099-c


Nancy7883 3 years ago

Dear Brian

Many thanks for your continued efforts to help and shed light on all....

I will not be communicating with the CA.

I will also be looking for an attorney, because I spoke with one yesterday, really not encouraging, as he actually said that sometimes the Plaintiff has to produce very little, not even the original, signed contract....appalling, at best,....seems as though it is ultimately decided by the judge and we do know that judges have incredible discretionary powers (that is scary, intimidating and wrong with regard to justice). I remain hopeful of finding one but looking around now is probably better than later!

Further investigation has given a little clarity on 1099c. Wikipedia explains that MBNA changed its name to FIA CARD SERVICES and eventually merged with/became Bank of America....so that is why the 1099c was issued from FIA CARD SERVICES....that is my understanding....let me know if you disagree. Seems as though the 1099c is from the OC.

Again, thank you so much....going to be a journey for sure!


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Nancy7883,

Regarding the lawyer who told you that sometimes the plaintiff has to produce very little, not even the signed original contract, I would keep looking for another attorney. His knowledge of how to win these cases does not impress me. Maybe he needs to read my article, because the knowledge contained therein has won numerous cases for people, including mine, and when my collection company appealed to a higher court, I hired an attorney, and he got it quashed without even having to go to court. One phone call from him, and they folded, because they knew what I know...they don't own my debt. So, keep searching until you talk to an attorney who sounds confident. That lawyer sounds like he is trying to make it sound difficult to win so that he can justify all the "hard work" (therefore high fee) he has to go through in order to win your case. Whatever his reason, if he is a downer from the very beginning, I would not use him unless he was the last lawyer standing.

If your original creditor was the entity that changed their name to FIA Card Services, and if FIA is the one suing you, then this complicates matters slightly. However, if the papers you were sent were from any other collection company, and they are using this 1099-C to make it appear that they own your debt, it is totally another matter. It really will take a good attorney to sort this one out for you.

One thing is for sure, when it is all over with, you will have learned quite a bit.

Best wishes,

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

One thing is important to understand here. The IRS will have absolutely nothing to do with your case. If you are sued by a collection company, the IRS will never be the one suing, nor will the IRS have any claim in the court during the proceedings. What a collection company does when they sue you will never require getting the attention of the IRS. They will never be involved. So, when you ask, how can you deal with the IRS here, you don't. This is strictly a case of a collection company suing a person for a debt they owed to some other entity, the original creditor. The IRS has nothing to do with any of this.

The reason the IRS was brought up at all is simply because some entity is trying to prove that they own the debt, because they may or may not have been the ones who filed a 1099-C form with the IRS. Any company that files this is doing their taxes, and they are taking a write-off for money lost due to a debt that they cancelled. Only the entity that truly owns the debt can file a 1099-C. Remember this. If your original creditor signs off, cancels your debt, it is over and finished. You have read my article, you should know this. It is over...period. My article thoroughly explains this. Go back and read it again, then come back to your question. Original creditor cancels the debt, it is over. No one can come along and claim that you owe them, no matter what forms they wave in the air to claim otherwise. If you doubt this, then hire an attorney and have them fight for your rights. Your attorney will attack the claim the same way.

I hope this helps.

Brian


Nancy7883 3 years ago

Thank you so much for your prompt response!

Yes, willl be looking around for an attorney for sure.

Regarding a potential lawsuit. Since I have received written communications from CACH LLC (and they write "this is a communication from a debt collector" on the correspondence, under the umbrella of a law firm) and I have received a 1099c from the OC , should I assume CACH LLC purchased the debt from FIA CARD SERVICES. Do I have the correct understanding?

WHEW!!!...sometimes just a little overwhelming!

Thank you again!


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Nancy7883,

The law firm is an umbrella used to give "coverage" for the collection company. Your attorney will be able to look at all of your papers and determine who is genuinely suing you, but from what I have read thus far, your original creditor has cancelled, or written off, the debt, and this collection company is suing you in an attempt to lay claim to the debt. I think you're fine, but a good attorney will have the final say as to all of this. Once the attorney reads your papers, I'm sure your mind will be set at ease.

Brian


soument 3 years ago

Hi, Just to refresh your memory, I'm the guy that is working overseas, debt collector sued, notice was sent to my brother's house.. I used some of your advice and combined it with my own arguments, and eventually won the case... Anyway, it turns out that it was not a judge that actually dismissed the case. I asked the court for a printed confirmation of the dismissal... apparently the debt collection lawyer voluntarily dismissed the case (!!). This is comical ; if the bank was really coming after me, and determined that I owed them and they had the evidence and it was worth it for them to file suit against me.. then, WHY would they abruptly just throw their hands up? lol, this is further proof that the whole thing was a pile of garbage, and if I sue the debt collection company, it will be part of my argument: If the lawsuit was legitimiate and it was really the bank coming after me, then why would the bank just throw their hands up and quit so easily (?) I think the voluntary dismissal was submitted a couple days after my request for production arrived at the debt collector's office.


Jennifer638 3 years ago

Brian,

AZ is a state which has a 2 step process when it come to a civil suit over $10K. First requirement is Arbitration where the arbitrator is assigned by the court. In your opinion, is Arbitration a good thing or bad thing for defendants? I've read that defendants have better chance if arbitrated thru JAMS. However, in AZ the arbitrator is selected by the court so there's no telling who or which entity will end up arbitrating the case.


Nancy7883 3 years ago

Brian

In the only communication I have had with CA by letter, remember I said "the statute of limitations had expired on the debt and the OC has cancelled the debt". I did not mention receiving the 1099c from AIF CARD SERVICES.

Question: In a lawsuit, could they request the 1099c for validation or 2012 tax return in an effoert to boost their case? Should I file for a tax extension?

Thank you so much!

Nancy


e.m. 3 years ago

Brian,

I have read your article many, many times, I have it on my desktop, and I even wrote separately all the 'answers' for defense in court.

My question is now:

how is it possible that an OC charge off a debt, file an 1099-c form with IRS - and in the same time SELL it to the debt buyer?

Everyone can see that all is WRONG.

So, how is that this continue to happen ?!

Thank you for all your wonderful answers, your site is the BEST.

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

Your question regarding an original creditor cancelling a debt, filing a 1099-C, then selling the debt to a debt buyer should show you just how crooked these people are. I was just served notice that I am in a class action lawsuit against Visa and Mastercard and a litany of huge banks, because, as a merchant who took payments from my customers through these entities, I am entitled to money from the settlement all on account of their "nefarious" practices. Funny how these companies get themselves into these situations.

Do I have any respect for credit card companies, large banks and Wall Street tycoons? No. They make money faster than they can lose it. That's why all of this making contracts, charging off debts, selling and re-selling debts, and the money continues to flow. So, I am not surprised at anything.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Nancy,

I cannot imagine any collection company either making, or having the authority to make, a request for your tax records to be subpoenaed. Keep in mind that the only entity with a right to file a 1099-C is the original creditor, so I cannot fathom how any collection company has any rights to view these.

Brian


Nancy7883 3 years ago

Dear Brian

The federal Trade Commission conducts round table discussions/opinions from lawyers. Please go to www.ftc.gov/os/comments/debtcollectroundtable3/545921-00017.pdf

I really want you to read this, as it seems to refute everything and leads me to think Plaintiff's have absolutely little or no defense....while all of the information and research you have posted seems so accurate and people are finally receiving justice.....I cannot believe what this article is saying.....maybe I'm just not understanding this article or maybe missing something critical....but please read it and give me you take!

Thank you so much

Nancy


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Jennifer638,

Whether a hearing is in court or in front of an arbitrator, treat them both the same way. While an arbitration hearing is a bit more relaxed, nonetheless, the burden of proof is still on the plaintiff, and you should not give them an inch. Use the same requests for proof that you would use in court. With arbitration, if you do not arrive at a consensus with each other, then it can be moved to court. The thing is, if the collection company sees what you are going to throw at them at this level, they may not wish to go to court.

Brian


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Hanavee 3 years ago from Pennsylvania Author

soument,

I loved reading this. Looking back, do you now wonder why you were ever worried? Almost makes you wish you were a lawyer so that you could have packed an even bigger punch. You've certainly gotten an education, wouldn't you say?

Glad my article helped you. It is outcomes like yours that make me glad I wrote it.

Best to you,

Brian


Nancy7883 3 years ago

Brian

I truly value everything you have studied, researched and posted to help so many people....the world needs more unselfish people like you ...please know how much I value your well studied research....but when I read this unbelievable offering/opinion by Eric Berman to the FTC ...it is somewhat discouraging with regard to the Plaintiff's lack of proving anything!

I remain determined to be proactive and seek education on what I consider to be nothing more than corruption at the highest level!

Thanks for all!

Nancy


Nancy7883 3 years ago

Brian

CORRECTION IN MY PRECIOUS POST:

Just realized I said Plaintiff with regard to the FTC reading, I meant DEFENDANT....so sorry. Clarity: plaintiff rules because they do not have to prove anything....just read it and give me your wise take!

Nancy


Nancy7883 3 years ago

I am laughing at my last post, thinking faster than I type, I meant to say previous post rather than precious....got to pay closer attention to autocorrect.....aargh! But with your great sense of humor...you might call it precious!

Got to keep humor in the mix of all of this!!!


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Nancy,

Not sure now which is which in your post, and I have not had the time to read Mr. Berman's piece to the FTC, but suffice it to say, regardless of what he wrote, I know that my article is based on the works of legal professors who are heads of their departments at some very prominent legal institutes, and what they contributed to my knowledge certainly won my case and the cases of others who have since followed the advice of my article. Not to denigrate Mr. Berman, but whatever he has to say apparently has not affected the status quo. I won my case based on the legal opinions of the professors who apparently contradict him, and guess who won - my team. That should be all that matters.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Nancy,

Not a problem. I get the points anyway. The bottom line is, what my article shows is that we can and should win our cases based on what the fundamental legal principles are.

Brian


Jennifer638 3 years ago

Nancy,

Adding to what Brian said, many OC attorneys will do anything to avoid proving consumer indebtedness. That's what they're "hoping" to lead the rest of us to believe. However, we as consumers also need to be vigilant and file Motion to Compel even when they try to avoid having to come up with proof. Our MTC need to be very specific as to the importance of the items we're asking the OC to prove. I believe that is what separates the winners from the losers in court. Just my two cents.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Jennifer,

So far, everybody's "two cents" has been contributing to the classroom. And, yes, the winners are the ones who did their homework.

Brian


soument 3 years ago

I'm on the fence about suing the debt collector, but if/when I do, one of the charges I might make is "Fraud in the Inducement". The debt collector claimed to be working on behalf of a bank, that the bank needed me to pay money that I owed them. This was completely false; the debt collector was trying to trick me into forming a contract with their company, and was not assigned by the bank to sue me, and they had no intention of sharing any earnings with the bank, had they won the case. The fact that they just threw their hands up and filed a voluntarily dismissal is so funny to me. They just assume everybody is stupid...


e.m. 3 years ago

Brian,

I know that you said many times in your answers that it is not good to communicate at all with the debt collectors. But what happened in a previous experience of mine was that in doing this, the debt collection dept. of a bank started to write letters to my family members and assume the debt belonged to them. The debt buyers can do the same, I'm afraid they will.

I know that if you don't answer to them, they may start to call your family members, neighbors or former work places – trying to find information about you and eventually disclose more info to these people.

Now, for the few cases I am dealing now, I have already sent them letters to 'cease and desist communication' with me and everyone else who knows me. So, I am not worry about it anymore. They don't call at all now.

But I am worried about future situations, I will need to deal with few more debt buyers, possibly, soon in the future.

Therefore, because I was scared of them calling my family – in my previous cases, I had to answer to their first 'notice of debt' which said that I have 30 days to answer in case I want to dispute the debt or part of the debt. I did answer with my 'REQUEST FOR VALIDATION' which was very complex, my requests were very detailed and similar with the requests in your 'REQUEST FOR PRODUCTION'.

[this happened 'before' I found your website...].

Their answer at my request for validation was only a page of an old statement, and a bill of sale [my name is not in there, but it shows like there were a bunch of debts they bought at once] – and one page of a computer generated summary of a debt where my name was included. I believe they considered all this an answer for 'verification' nor for 'validation'.

I did answer them back telling that I am not content with their answers, that I requested VALIDATION nor verification.

All this happened during the months of November – December 2012.

Again, I emphasize that I did not know about your website at that point in time, so I did this all on my own and searching online about tips on what to do.

I did not receive anything from them, anymore. Do you think I scared them? I like to think so.

I know that I will have another few situations to deal in the future with another few debt buyers.

So, I want to be sure 'which' is the best strategy to use?:

Is it okay to send to the CA a 'request for VALIDATION' as I did in the past, right after I receive their first 'notice of debt'? And hoping that they will not proceed to a lawsuit because they assume I know how to defend myself?

OR

to NOT send them any letter as answer [but in this case, they will assume that my debt is mine] and waiting to find out if I receive a 'Summons' from them regarding a lawsuit – then 'after' I receive the 'Summons', to send them the 'request for production' [the one at the end of your article] ?

Sorry about my long post. And thank your in advance for your answer.

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

Regarding collection agencies contacting anyone else but you, they are not permitted to discuss your debt, or your financial situation, with anyone but you. It is one thing for them to contact someone else looking for you, but they are on thin ice the minute they start asking questions. If you find that they disclosed any information about your indebtedness to anyone, you have a right to sue them.

As for what to do when they send you the scary letter demanding that you verify the debt within thirty days, or else...or else what? What are they going to do if you don't verify the debt? Think about this. If you don't verify the debt, do they have any more information? They think you are stupid enough to play into their hand. If you could verify the debt, you would be doing their homework. They are hoping that you are stupid enough to do this, because, if you verified it, you then proved their case for them. They would take that verification to a judge and win. They need you to verify it, because they obviously cannot. So, my answer to anyone who is facing this letter is to turn the tables on them and send a formal request for production. Skip to the chase, as the old saying goes. Start right off with a bang. Hand them papers that put the scare where it ought to be, in their camp. These collection companies skirt the fringes of legal, and many times, once they file in court, they engage in fraud and illegal actions. So, my advice is to send them a request for production and make them think that they picked on the wrong person. If they have any sense, they'll drop you like a hot potato.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

soument,

A lawyer friend of mine once said, "Choose your battles carefully." Yes, you won, and yes, they engaged in fraudulent practices. Yours is not the first time they have done this, and undoubtedly, they will keep right on doing it until such a day as enough people get wise to them and start fighting back, like you and others who have read my article have done. Must be a real shock to their system to have you guys pulling the rug out from under them now that you are learning your rights.

If you want to sue them, I would contact a lawyer and run the idea past the lawyer. You have every right to do so, but you would not win any money, because you would have to show how they damaged you. If they were successfully sued, they would be in trouble. But, because you would be waking a lot of "sleeping dogs," you have to consider the after effects, such as, you would have a legal bill, unless you went after them with government agencies. But if you are called as a witness, what does their lawyer do with you? What kinds of information can they place before the court? Trust me, these cases are not cut and dry. The opposing team does like to play dirty, so, consider all the options. If you still want to take them to court, that is your right, but find an attorney and run it by them. See what they advise. It can be rewarding going after these businesses, but sometimes, the end result is not as rewarding as you would like, and it becomes a smaller victory than you sought at the beginning. The choice is still yours.

Brian


Joe Merla 3 years ago

Brian,

I was able to get the court to postpone my trial date to April by mentioning that I, the defendant needed more preparation time to defend my case.

Basically, I did this in anticipation of the plaintiff not being able nor willing to produce answers to my certified letter for Request For Production. Seeing that I am probably not going to hear back from them in the time alotted, I believe that I need to file a Motion To Compel with the court so that the botttom feeding attorneys for the plaintiff would be "compelled" to answer my Request. Is there a form or a link to a sample letter of Motion To Compel or is this something that I have to obtain from the court?

I have been reading your article a number of times already and some of the comments posted here have also given me much confidence in hopefully beating the alleged charges levied against me when my court date arrives. Thank you!


Nancy7883 3 years ago

BRIAN'S LAW SCHOOL

Dear Brian

Thank you for always being so patient, going over and over lots of the same issues, again and again and doing so with great kindness ....I truly sense your wanting to help and empower people with education, facts and encouragement.

Question: The request for Production for Documents/Discovery usually results in very little, nothing substantive (because they probably don't have anything). As Jennifer368 mentioned you can file a MTC - does that mean they must render detailed statements, transactions and the original contract. Can they come back with some law that precludes them from having to comply with Bills of Particulars and necessary papers for the defendant.

Thanks Jennifer 638 for your insightful post to me....think this is so important for us to all pitch in and help one another.

Nancy


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Nancy,

Thanks for the banner headline there. School is open for all. Regarding your questions of what happens when you file a Motion to Compel, you file this motion when the party from whom you requested answers to interrogatories has failed to comply within time limits. Their refusal to answer means that the court has to intervene and order them to comply. How can they then refuse to answer? If the document or item that you requested is relevant to the issues in your case, there is little that will allow them to refuse production. However, if the documents or items that you requested are attorney client correspondence, that cannot be obtained. Also, such things as anything that would embarrass or unduly burden the party on whom you served the request may offer compelling reasons to the court to bar their release under this motion. Aside from all of these examples, anything that you request in the interrogatories phase must be complied with. The court can sanction any party that does not produce the requested items without compelling reason, and those sanctions can be severe, even to the point of having the case dismissed.

I think that, if you have made a request for production with a collection agency, and they have waited out the time limits and still not produced the requested items, a motion to compel is going to be met with either a silence and retreat, or a withdrawal of the suit by them. Once a court gets involved with an order to compel, game over for the collection company. It's then time to end their bluff...put up or shut up, as the old saying goes.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Joe,

Here is a link to a sample form for Motion to Compel, thanks to a wonderful website at Northwest Registered Agent LLC:

http://www.northwestregisteredagent.com/motion-to-...

You can use their form as an example of how to model the one you produce. Once you set out to produce the document, make sure that you outline your requests.

Identify your case, i.e, that this is a suit being brought against you by a collection agency.

List your question or questions, or the documents that you are requesting for production. Then explain how these are relevant to your case.

If the other party has refused in writing to answer your request, attach that written refusal. If they have simply not complied, and you have no written or verbal proof that they are refusing, then simply state that the other party has failed to comply within the time limits, proof being their silence.

If the other party has refused to answer, and has given a reason why they will not comply, explain to the court that this is their reason, then show why that reason is not valid.

Ask the court to compel the other party to answer the request, and also ask the court to sanction the other party for failure to comply.

If you have filed this with the court and given reasonable notice to the other party, if they failed to comply with the request for production in the first place, then the collection company is probably heading for the door at this point. Check with your local court to see if they have forms you can use, and also, what their filing fee is. The fee is probably under fifty dollars, and they may have a motion to compel form already available. The rest is easy.

I'm glad my article and the resulting posts have made life a little easier to breathe for you. Let me know how your case turns out. Good luck to you,

Brian


A69shelby 3 years ago

I see no time limit on the example for production above, what is the amount of time they have?


patriot762 3 years ago

Brian,

Hello again. Good news. I won the lawsuit although, it is not official. A few mistakes were made by myself early on as far as the request for production. However, at least in the state of Arizona the plaintiff has 40 days after the filing of the answer to send a letter of disclosure to the defendant. After which the defendant has 20 days to send his disclosure to the plaintiff. Well oddly enough the plaintiff sent me a disclosure statement 88 days after the answer letter was filed, some 7 days before trial. However they did not file it with the court. Here is the best part though. This morning it turns out the original prosecuting attorneys were nowhere to be found, and another one showed up in their place without any attempt to contact the court. The lawsuit had been sold to a clearing house of some sort. The new attorney didn't have any real information except the lawsuit and answer letter. No witnesses, no information to prosecute...He was really embarrassed. The judge was not impressed by this to say the least, and told the new attorney he had about as much credibility in this case as a stranger off the street. The judge told the plaintiff's new attorney he is not allowed to testify. In closing I asked the judge to dismiss this case with extreme prejudice to prevent an appeal. The judge smiled and said it will be considered. Other than that I never had to say anything. Officially I will have an answer from the judge in two weeks or less. I wish you could have seen the look on the plaintiff's attorneys face!!! Lol. To say he was unprepared is a huge understatement. At the very least I have a better understanding of the legal system. Thank you very much for your help and information on this matter Brian, I can't thank you enough.


Nancy7883 3 years ago

Brian and Everyone

While we are taking classes at Brian's Law School, everyone seems to be studying and researching about all of this, and sharing their findings. Found a good article on MSN Money that you all may want to read.....backs up our teacher's findings: money.msn.com/debt-management 7 ways to fight a debt lawsuit. Published: October 12, 2012. VERY SUBSTANTIAL STUFF!

I'd say we're all in this together!


e.m. 3 years ago

Brian,

Thank you for your answer.

So, do you think I did right in sending them a 'request for validation' right after I received their first letter? . My request for validation was almost the same with your 'request for production'.

Does 'verification' means that - if i send them right away an answer of any kind, this could be a proof for them that I owe the debt - equal 'verification'?!

Do you think that simply becase I write them back, this would mean 'verification' for them and put me in a 'hot spot'?

And - I understand from what you are saying - that it is better to send the 'request for production' ONLY when/and if I receive a 'Summons' - meaning to do this ONLY after I hear that I am sued? and receive the Summons?!...

Please, help me clarify this. I want to be prepared for my next 'cases' that I need to deal with.

Thank you again.

e.m.


e.m. 3 years ago

Brian,

I want to add a little more to my previous post:

in sending right away my 'request for validation' to the CA just after receiving their first letter - I was hoping and thinking that when they received this, they will stop herrassing me and even stop them to sue me if they think to do it. Meaning that I thought that this will 'discourage' them in pursuing me for the debt.

So, 'this' was the main idea of sending to CA my first response to them:

to avoid further action from their part. And in doing this, avoiding receiving the Summons to go to court.

...and to shorten the 'suffering' time of waiting to be sued...

e.m.


Jimmy 3 years ago

Brian....

I've been dealing with two of the larger credit card companies that I am no longer in a position to pay. Because of the numerous nefarious practices that have led to class action lawsuits, and my general distrust and disdain for the people that screwed up Wall Street and got bailed out by us taxpayers, I wanted to record my conversations with the credit card companies. I figured that I might need proof of any of their statements at a later time. When I contacted them on the phone, they pulled up my account and said, "This conversation is being recorded." I said, "That's fine, I intend to record it on my end to protect my claims." I was told to hang on and that a supervisor would speak to me. The account manager came back on the line and said, "My supervisor will call you. May I have your number." I provided it and no call was ever returned. The same happened with two other companies. I assume they refuse to let you record to protect themselves. But I see no legal reason I should agree to be recorded without recording on my end. Any idea what this is about?

Jimmy


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Jimmy,

Sounds like you put them on the spot. I thought it was funny, actually. Kind of like what I would do. I love turning the tables on these blood suckers, and being able to record them makes them uncomfortable, because they don't know what you are going to ask. When they call you, it is scripted, with only the questions that help set you up for a fall being asked. They know what they are doing to you, and they are afraid of you doing it to them.

When recording any call, the law requires that the party being recorded grant their permission. Notice they did not give their permission, and they weren't about to. You are not required to be recorded, either, so you can deny their request, which then doesn't give you and them too much to talk about, does it?

The more you know your rights, the sweeter the victory. Good luck to you,

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

A60shelby,

Time limits can vary from state to state, so you want to ask your court what those will be. Most requests for production give thirty days, but you still want to make sure by asking the court in your locality.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

patriot762,

Every time one of you guys wins, I just wish I could be there to see you smile. Great feeling, isn't it? And when you first got hit with that summons, didn't you just feel awful? Nice to know that you actually have rights. Pity all the people who do not know this and just go like lemmings into the jaws of these blood suckers. I'm glad that you found my article in time to win your case. I would have given anything to have been a witness in court to watch that lawyer squirm. He should find a better line of work, rather than trying to take the bread off the tables of others.

I thoroughly enjoyed reading your account. Kudos to you!

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Nancy,

Thank you so much for sharing. I am currently working on my latest book, so I don't get much time for extra reading right now, but if I can squeeze it in, I will try to read this one shortly (hopefully this week). Sounds really great!

You guys are making this blog worth the effort. Keep up the good work. I just read the post by Patriot762, another victory, and what a pleasure it is to read these accounts. Kudos to all of you for putting up a good fight against these parasites.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

Using the request for production and the form I outlined at the end of my article means that you use legal language that can scare the pants off these guys. When people start using their own terminology and grammar, the end results can be disastrous. I never insert myself when involved with such situations as suits. I follow precedent, that is, I use any form that is already available and recognized. I'm not out to re-invent the wheel. Depending on how your request for validation was written and composed, you will have proportionate results. If your request was written by an attorney, you will get maximum effect. If it was written by someone who does not understand legal procedure, the plaintiff will be quick to notice and will do his or her utmost to capitalize on that finding.

If I am about to challenge an attorney, the last thing I want them to think is that I am representing myself and blindly finding my way through all of this. That would be playing right into their hands. Nope. If there is a standard form, if there is a standard procedure, I am going to use that every time.

You ask what your results will be? Only time will tell at this point. I understand your desire to head them off at the pass, and I don't see any harm in being proactive like you did. It cannot hurt. But, I would recommend using standard forms that you can find online for any level of legal action. Make them think you are using the advice of an attorney friend. Keep them wondering. The minute you send them a personal letter, they will know instantly what you are about, so, keep it by the books.

In no way would I answer any questions posed by them regarding your verifying anything. Unless they are suing you, have filed in court, and are in the discovery phase and filed a request for production on you, I would give them nothing. You absolutely do not want to tell them you owe anything. The burden of proof for that rests on them.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

Be very careful of any communication with a collection company before you are actually involved in the suit process. I would simply send them a request for production, and give them nothing else. There are attorneys who would tell you to not even do that, to simply wait until you are sued to then send the request for production, because it gives them less time to prepare. Knowing in advance of a suit gives them unlimited time to research their claim...if they are that anxious to get your debt.

Brian


e.m. 3 years ago

Brian,

It is exactly the answer I was waiting for from you: to just wait until they sue you, then to send them the 'request for production' - and not give them time to prepare.

And NOT communicate in any way with them.

Thank you, Now I see everything very clear.

e.m.


Jennifer638 3 years ago

Here's something I've learned lately. It's very costly for OCs and CAs to go to arbitration via JAMS. It can sometimes cost the creditors upwards of over $30K to arbitrate. If you are sued, you should consider filing MTC arb with JAMS ...especially if your cardmember agreement has an arbitration clause. You may even want to initiate pre-suit arbitration by sending DV and request for arbitration via JAMS per your cardmember agreement. If they ignore you on this and sue you in court anyway, they are probably in violation of FDCPA.

OCs and CAs HATE arbitrating through JAMS because it's cost effective for consumers but NOT for them. It's very expensive for them. So if the debt is on the smaller side, they may even elect to dismiss. Arbitration may also drag on for a year or two which means the legals fees will really start to rack up for the Plaintiff.

This may be a better solution than just sitting around for the big bomb to drop. I'm not an attorney nor am I giving legal advice. I am just conveying what I've learned from various websites here.

Brain, I'm not sure if you'd agree and I'd love to hear your input on this as well! :)


Matt Constant 3 years ago from Punta Gorda, Florida

Hello,

Another few questions...

I filed a response at the courthouse. Responded using your first statement and then stated I would be present at the courthouse on pretrial date.

What can I expect at pretrial?

When can I request for production of documents?

What should I do at pretrial? Thank you!


Nancy7883 3 years ago

Dear Brian and EVERYONE

This is the best article yet, "Defending Junk-Debt Buyer Lawsuits" Peter A Holland, Law Professor at University of Maryland Law School. He goes into great depths, step by step for defending a lawsuit, every step that needs to be validated and covered by the defendant.

"I SUED YOU, YOU DIDN'T FILE AN ANSWER,

AND YOU DIDN'T COME TO COURT

WHAT MORE DO I NEED TO PROVE?"

---remark made by an attorney (Plaintiff) for a junk-debt buyer lawsuit

THIS IS AN ABSOLUTE MUST READ FOR EVERYONE!


Ginger 3 years ago

Please help, I am being sued by the original creditor Capital One! I mean a lawyer sent me the paper work certified mail but it still says Capital One. Is this possible? Are your tactics still going to work? Please respond right away as I go to court next week!!!!! I sent the original paper work back to the courthouse today and wrote I deny everything.


e.m . 3 years ago

Brian,

I suppose that my request for validation send right away after receiving notice of debt from the first collection agency did scare them. I did not receive anything from them, anymore.

But now, I have just received a first notice of debt from a 'new' [for me] collection agency that claims the ownership of the 'same' debt that the first collection agency did claim to own just o month ago.

The first collection agency did not want to continue to bother me, so they sold it I suppose. But I do not understand this: this second collection agency claims to have bought the debt directly from the Original Creditor...!!!...The last letter I have just received has as reference the OC account number, exactly like the first collection agency. But the chain of sale is: OC - 1st collection agency - 2nd collection agency.

How can 2 collection agencies can buy the same debt at almost the same time - and both buying directly from the same OC ?

So, now, it is better to not send them any kind of letter. But I want to 'totally' avoid them to call my family members - not even for asking about light information about me. How can I avoid this in case I do not send them my letter to dispute the debt - and they will possibly start to worry about my whereabouts and start to call around [probably]?

And - if they call me at home, and it will happen that I will answer their call - can you advice me on 'what' to say? Should I say: 'I'm sorry, but I don't know who you are, I have never done business with you - please do not call back, and if you do I will talk to my attorney'...or something like this...Any better ideas ?!

I might also say: 'I would record the conversation too for accuracy purpose' and see what they will say.

So, I will NOT send any kind of 'request for validation' now [as I did in the past]. I will wait to see what happens. You know, they ask in their first letter 'if I dispute the debt or any part of the debt '- otherwise if I don't answer, 'they will assume the debt is valid'.

You are right, in answering them back this is kind of playing their game.

Thank you in advance for your response.

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

By now, you are probably fed up with one collection company after another coming after you as one drops out and the other picks up the pursuit. You can either endure what by now you know will be the next step - harassment - or fire back with preemptive actions. Phone calls and letters, they persist like a toothache. So, if you want to take the offensive and give them a run for their money, when this new collection company sends you a letter, send them a request for production via certified mail, return receipt requested. That certainly cuts to the chase and puts them on notice that you may just escalate this to a higher legal situation - court. If they call, tell them you want the name of their company and the correct mailing address. They will undoubtedly balk, depending on the minimum wage earner who is working their call center and that person's amount of training to answer such demands. In most cases, if you make this verbal demand to one of their telephone callers, you will throw them off balance, and they will have any of several responses ranging from calling their supervisor for help handling the call, to actually giving you the address. They usually resort to asking you for your information, which you do not want to give. Just keep calmly, professionally and repeatedly demanding their information until you get it.

So, if you want to get proactive, jump to the end and go nuclear on them. Send them a request for production.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Ginger,

Don't panic. They are trying to scare you, so turn the tables on them. Send a request for production to the plaintiff, send it certified mail, return receipt requested. Send it immediately, because you have a right to make those demands. Have a copy of this request with you when you go to court so that you can show the judge that you requested this. You will probably find that once the plaintiff receives your request for production, they will not show up in court. And if perchance they do show up in court, then have my article read so many times that you can practically recite it. More people have read my article, put its information to work and have won their cases.

Here's what patriot762 recently wrote:

Brian,

Hello again. Good news. I won the lawsuit although, it is not official. A few mistakes were made by myself early on as far as the request for production. However, at least in the state of Arizona the plaintiff has 40 days after the filing of the answer to send a letter of disclosure to the defendant. After which the defendant has 20 days to send his disclosure to the plaintiff. Well oddly enough the plaintiff sent me a disclosure statement 88 days after the answer letter was filed, some 7 days before trial. However they did not file it with the court. Here is the best part though. This morning it turns out the original prosecuting attorneys were nowhere to be found, and another one showed up in their place without any attempt to contact the court. The lawsuit had been sold to a clearing house of some sort. The new attorney didn't have any real information except the lawsuit and answer letter. No witnesses, no information to prosecute...He was really embarrassed. The judge was not impressed by this to say the least, and told the new attorney he had about as much credibility in this case as a stranger off the street. The judge told the plaintiff's new attorney he is not allowed to testify. In closing I asked the judge to dismiss this case with extreme prejudice to prevent an appeal. The judge smiled and said it will be considered. Other than that I never had to say anything. Officially I will have an answer from the judge in two weeks or less. I wish you could have seen the look on the plaintiff's attorneys face!!! Lol. To say he was unprepared is a huge understatement. At the very least I have a better understanding of the legal system. Thank you very much for your help and information on this matter Brian, I can't thank you enough.

And here is what Mike recently wrote:

Brian-

I can't begin to tell you how much your advice helped me today in court. The lawyer did show up, (Michael Ratchford-Scranton) He left me for last to mediate before the Commissioner came into the room. He called my name and asked me to step into the room where other attorneys were tricking people into payment plans. My heart really went out to them. Many of the people, who had the legal right on their side, were fooled into settling. Anyway, Ratchford's guy sat me down and began to look at the computer. He didn't say anything for about 2 minutes. He was waiting for me to put my foot into my mouth. The conversation went like this:

Me: Sorry but who are you?

Him: My name is John Doe (I don't recall his name at the moment)

Me: Sorry, but who are you?

Him: I am the attorney representing the Plaintiff

Me: Sorry, but who is this Plaintiff?

Him: Midland Funding, the ones that you owe money too

Me: No idea what you are talking about

He continued to look around the computer and then said:

Him: I can't seem to find the "Service"

Me: What's that?

Him: Doc that says you were served. Do you have the contract that was with the Statement of Claim?

Me: All I have is a piece of paper telling me to appear here today.

Me: I sent you a letter asking for a "Request of Production"

Him: Yes, I received that and you should have received my reply in the mail.

Me: I received nothing

Him: Ok, well it's on my desk and will be mailed right away with a copy of the contract and purchases. Now, how would you like to repay the money that is owed?

Me: I don't recall this account

Him: It's for the sum of $?????

Me: I don't recall this account

Him: OK, I have to speak to the Commissioner to see what he wants to do

Me: I know what I want to do. I want immediate dismissal. You are wasting my time

So, ten minutes later he was up front whispering to the Commissioner and the Commissioner said to him "But I must inform him of his rights." The Lawyer then turned to me and said "I have withdrawn the lawsuit, YOU MAY GO HOME." I then stood and asked to speak to the Commissioner. After waiting until everyone else's turn, I asked the Commissioner for a dismissal. He said that only a Judge could do that. I asked to see the judge because I wanted to make sure that Ratchford doesn't haul me into court a second time. The Lawyers face dropped. He looked pissed off. I then went down the hall and the lawyer did not follow! The judge changed the outcome from "Dismissed without Prejudice" to "Judgment for the Defendant." He did however say that they did have a right to appeal, but it was unlikely.

Brian, thank you again for your much valuable information and help here on this site. I really appreciate you taking the time to share your knowledge and help us. I don't think I could have pulled that off today without having first read you comments here.

I'd like to wish everyone else on this site GOOD LucK! Now, I have to wait to see if they appeal. I really don' think they will, but who knows?

Thanks again

Mike

So, Ginger, keep the faith. Study my article, learn the key points, do your homework, and you will do fine.

Good luck to you,

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Nancy,

I got to read that excellent article at Money.msn.com on 7 Ways to Fight a Debt Lawsuit. I recommend everyone read that, because, if you know what my article teaches, then you see deeper into that treatment of the subject over at Money.msn.com . Thanks for recommending that piece...well worth reading.

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Matt,

What can you expect at pretrial? Probably that the plaintiff fails to appear. Baring that, expect to be given the opportunity to state your case to the judge. What should you do? Be polite to the judge, have your notes ready and in front of you so that you can reference anything you are going to need for your defense, stay calm, and state your case. What is your case? That the plaintiff has not rendered sufficient proof for you to either deny or affirm ownership of this alleged debt, and use the request for production as the list of requirements that the plaintiff has failed to provide. The judge will know full well what that means. Read what Mike wrote recently:

Brian-

I can't begin to tell you how much your advice helped me today in court. The lawyer did show up, (Michael Ratchford-Scranton) He left me for last to mediate before the Commissioner came into the room. He called my name and asked me to step into the room where other attorneys were tricking people into payment plans. My heart really went out to them. Many of the people, who had the legal right on their side, were fooled into settling. Anyway, Ratchford's guy sat me down and began to look at the computer. He didn't say anything for about 2 minutes. He was waiting for me to put my foot into my mouth. The conversation went like this:

Me: Sorry but who are you?

Him: My name is John Doe (I don't recall his name at the moment)

Me: Sorry, but who are you?

Him: I am the attorney representing the Plaintiff

Me: Sorry, but who is this Plaintiff?

Him: Midland Funding, the ones that you owe money too

Me: No idea what you are talking about

He continued to look around the computer and then said:

Him: I can't seem to find the "Service"

Me: What's that?

Him: Doc that says you were served. Do you have the contract that was with the Statement of Claim?

Me: All I have is a piece of paper telling me to appear here today.

Me: I sent you a letter asking for a "Request of Production"

Him: Yes, I received that and you should have received my reply in the mail.

Me: I received nothing

Him: Ok, well it's on my desk and will be mailed right away with a copy of the contract and purchases. Now, how would you like to repay the money that is owed?

Me: I don't recall this account

Him: It's for the sum of $?????

Me: I don't recall this account

Him: OK, I have to speak to the Commissioner to see what he wants to do

Me: I know what I want to do. I want immediate dismissal. You are wasting my time

So, ten minutes later he was up front whispering to the Commissioner and the Commissioner said to him "But I must inform him of his rights." The Lawyer then turned to me and said "I have withdrawn the lawsuit, YOU MAY GO HOME." I then stood and asked to speak to the Commissioner. After waiting until everyone else's turn, I asked the Commissioner for a dismissal. He said that only a Judge could do that. I asked to see the judge because I wanted to make sure that Ratchford doesn't haul me into court a second time. The Lawyers face dropped. He looked pissed off. I then went down the hall and the lawyer did not follow! The judge changed the outcome from "Dismissed without Prejudice" to "Judgment for the Defendant." He did however say that they did have a right to appeal, but it was unlikely.

Brian, thank you again for your much valuable information and help here on this site. I really appreciate you taking the time to share your knowledge and help us. I don't think I could have pulled that off today without having first read you comments here.

I'd like to wish everyone else on this site GOOD LucK! Now, I have to wait to see if they appeal. I really don' think they will, but who knows?

Thanks again

Mike

So, keep reading my article until it all makes sense, then use that knowledge to defend yourself if it comes to that.

Good luck to you,

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Jennifer638,

Well, I don't think any collection company is going to spend up to $30,000 on any case, and whoever said that debt collection suits could drag on for up to two years was possibly confusing tort law with debt collection practices in magisterial courts, which is where most of these cases begin and end. I sincerely doubt that any debt collection process entering the courts will ever reach costs that high for either party, nor will they ever take that long to adjudicate.

Brian


e.m. 3 years ago

Brian,

In your last response to me, you said that it is good to send my request for production after receiving their first letter.

I have already received the first letter from the new collection agency - two days ago. It looks as a regular printed letter without a signature or a printed name on it. Their name and address are on it.

But in an earlier response [yours] to me, regarding sending the 'request for production' to the collection agency - you told me this: 'simply wait until you are sued to then send the request for production, because it gives them less time to prepare. Knowing in advance of a suit gives them unlimited time to research their claim'.

So, again - I am a little confused: 'WHEN' it is best time to send the request for production: right now as a response to them in order to dispute the dept, following their first letter notice of debt? OR just wait to be sued, then send request for production after I receive the Summons?

Would it be ok to bring the word 'attorney' in the first conversation on the phone [if it will be ever a conversation] - and what is a 'clever' way to use it, while talking to them?It might be a good try to intimidate them.

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

The reason I originally said that I would send a request for production only when they sued, is that sending it prematurely could give some smart attorney a heads-up, that is, the realization that, if he is going to collect from you, he had better arrange a stronger offense, like suing you in a higher court where you would need a lawyer to defend you or face the near certainty of losing due to legal tricks that a smart lawyer would use in that court. It is one thing to be sued in magisterial court, but totally another to have that suit heard in a higher court. There, as I have written many times, the legal restrictions are much more stringent, and you absolutely would not be able to defend yourself without an attorney...unless you simply wanted to hand victory to the plaintiff. This does not mean that sending a request for production will automatically result in the collection company suing in a higher court.

The reason I said that you may want to go ahead and send a request for production to this new collection company is that you said that you wanted to stop them from going any further, like calling your relatives. Therefore, if you want to stop them "now," then you have to become the initiator of action. You no longer wait for them to make the next more - you make it. The choice is yours. I have laid out the two directions and the two potentialities they pose. I really hope this ends your confusion.

As for bringing the word attorney into the conversation, you could simply say that you will need this information for your attorney. You don't have to say that you currently have one.

Brian


e.m. 3 years ago

Brian,

Something else I need to say: the debt is kind of high, which means that - 'for sure' - if I will be brought to court, it will be in a higher court where I need a lawyer. This scares me because in my area all lawyers are kind of expensive and I don't know what am I going to do if this happens...

So, this being said - I must do a little more thinking over'when' to respond with the 'request for production': now or later.

Thank you very much for all your answers., they are very much help to me.

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

Start researching free legal services. There are groups that offer free legal services in certain areas, so you might just find someone who is willing to take your case for free. Lawyers are required to donate a portion of their time each year toward helping people pro bono, which means free. See if you can't find one that way. If you don't succeed there, then start calling around to lawyers who specialize in debt reduction and bankruptcy cases, and ask what their rates are. Find the one who is the least expensive, then ask if you can make a monthly payment arrangement for the bill (and make sure you meet that obligation). You might even want to start a little piggy bank with a small contribution toward the fund each week, a piggy bank that never gets touched. Let it accumulate until you have a sizable amount. If you end up getting sued, you are ready, and if years go by, and they all disappear, you can take a vacation.

No matter how large the debt, there is no guarantee that a collection company will pursue it all the way. They know that they do not have a case without the items I have listed in my article, so half of their campaign is all bluff and scare tactics. Think everything through, and start researching lawyers now while you have lots of time on your side.

Brian


Ginger 3 years ago

When you are asking for Request for Production, on the form it says insert credit card company's name. Is this the actual credit card company that I should be putting here or the blood sucking debt collection agency's name? That's the one that is coming after me? Please respond asap! I am trying to get this mailed out today!! Thanks so much!!


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Ginger,

When the collection company mails you the summons, they will have the original creditor listed above their name, as if they are collecting for the original creditor. That's how they file, so that is what you want to put on the header for the request for production. It does not mean that you are then sending a copy of this to the original creditor. It is just going to the plaintiff, in this case, the collection company. So, just copy their heading into your form, and you'll be fine.

Good luck to you,

Brian


Ginger 3 years ago

Thank you so much! New problem/question! I just called my local court house and they received my letter stating that I deny everything and said that my court date was rescheduled?! Now what! Why is the attorney stalling?


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Ginger,

If you did not ask for a rescheduling, then it is one of two things: either the court needed to move their schedule around, or the plaintiff asked for a postponement. I would not be concerned. If the plaintiff asked for a postponement, then it may mean that you threw a monkey wrench into the works for them, and they are stepping back to review their strategy. If nothing else happens, and it stays in the same court, which it seems to be, then be ready when you go in there with all of the request for proof questions. The plaintiff bears the burden of proof, which means that they made the claim that you owe them, and they have to prove that they do indeed owe them. They can't wave blank papers around. They have to produce all of those items in the request for production. So, do your homework, research my article, know all of the items in that request for production, and be prepared to act on all of this information. If you do this, you should be fine.

Good luck to you,

Brian


Nancy7883 3 years ago

Hi Brian

In ALL of your spare time....Google: defending junk debt buyer lawsuits - Peter A. Holland....it should be required reading for your class! I wish you would post it for all, or use excerpts to once again support your own research, because it goes into great depth of the scope of all of this and he, like you, is on a vigilant mission to enlighten attorneys/judges and consumers and expose the JDB's corruption. His defense steps are numbered and articulate, as are yours, so it just adds more credibility to your research and the entire issue. We need to hear more voices like yours!

Many, many thanks for all,


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Nancym

Thank you for those kind remarks. Yes, it would be nice to do some more corroborative research to post on here, and I have friends who have suggested I even do another book, making this the subject. Of course, once I do a book on this subject, the collection companies are going to put a bounty on my head.

Hopefully, everybody reading these posts takes the time to read and study the suggested extra-curricular reading. Thanks for your good input.

Brian


e.m. 3 years ago

Brian,

I agree that people can read other articles or books on this matter, but what I like the most for me to be on this forum is that you Brian when we ask questions, you are very prompt in answering and you answer in a way that everyone understands it, even the most simple mind. Your work is dedicated to people having hardship in their life, and you rely your work on real cases, our personal situations, contributing directly to our success - so I am happy with what you do and I can tell you that I've read many other articles and posts on other websites, but any of them presents the problems as clear as you do.

I appreciate very much your work on this website. Just want to let you know how much appreciated you are by people like me, that you help everyday.

I am waiting for a new debt collector to call me, and for the first time 'I am not afraid' of a phone call coming from a debt collector. It is funny, how everything changed for me as some time ago I was anxious to get this kind of calls - now thanks to your help - I can face the debt collector, and I know what to say...and I'm not anxious anymore, just calm and relaxed, knowing what I know now.

Thank you.

e..


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

Thank you for those kind comments. When I wrote this article originally, I hoped that someone would read it and be able to use the material to save them from the sorry tactics used by collection companies. I had no idea that so many people would end up reading this and end up being helped. The number of people who have read my article is well into the thousands now, and it just keeps on growing, so the good news is that my article is truly helping people in their efforts to get back on their feet. Every time somebody writes to tell me that they won their cases, I am rewarded greatly.

Brian


e.m. 3 years ago

Brian,

I want to explain you few things about the mail that debt collection sends me: they send it to my name and address, but always the 'unit no.' is wrong, meaning it is a different number therefore the mail might go to a different person/unit [it is a condos complex]. But even so, the mail person puts the letters in my mail box because she/he knows my name and unit no.

The first debt collection co. bought the debt from the OC and somehow the address was wrong on the papers when they bought the debt. Then the next debt buyer did buy the debt from the first buyer, with the address still wrong.

I did NOT tell to the debt collection co. that my address is wrong. But in the letters i've sent them, i included my correct address, hoping they will see it and make the change.

One time i had to write a note to the neighbor whose unit no. is on my personal mail coming from debt collectors, in order to tell her to not send back my mail to the post office [as 'person not at this address], and to let me know and i will go to pick the mail up from her home, if needed.

So, i thought that maybe this [them having my address - wrong] will help me against the debt collectors, I am not sure how...but i still think they made a mistake in my favor...What do you think?

I suppose their robbot machines pick up the initial address they took from OC and keep this going.

The only way i'm worried is that i might receive a Summons and it will go to a wrong door, and i will not know on time about it...and this will bring a delay in all the process.

Is this small fact beneficial to me, in any way? Like - I can say that I did not receive their letters, that by the way they are sending in regular mail.

OR should i tell them that they have wrong address?! - but in doing this, i [again] play their game and communicate with them, therefore i get deeper in this communication which is unnecessary plus i don't want to talk to them.

What's right and what's wrong in what i'm doing?

thank you.

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

I wouldn't worry about this one. If they send it to the wrong unit number, that is not major enough for a judge to rule against them, but it is worth bringing up in court. On the other hand, if they send a summons to the wrong address, you could play that one out for a while. However, all it would do it prolong the inevitable. They would get a judgement by default, because you did not show up for court, they would then start taking money from your bank account, then you would have to file with the court to ask that that judgement be set aside and a new trial ordered based on the error, and it would start all over again.

But, if it were me, personally, I would just wait it out and see how many more times this "debt" changes hands. Maybe one of them will eventually get the address right. It's not going to change the ultimate outcome, which is, if they go to court, you are going to beat them.

Brian


e.m. 3 years ago

Brian,

I want to talk to you about a technical problem with this page:

I have hard time getting to the bottom of the page, because 'the script is very long'. I have to renew the page multiple times in order to get to the last message.

Is it possible to program the script of this page - in more pages, and the page to be shorter? like other sites have: pag 1,2,3, etc ?!

It is possible that not only me encounter this problem...

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

Good question. At some point, I will have to ask the production company that is responsible for Hub Pages. I have nothing to do with the technical aspect of this web site. I am only an author, but I agree with you that it would be a nicer format if they did it as page after page instead of one gigantic scroll.

Brian


AnthonyEH 3 years ago

Hanavee

Thank you for all of this wonderful Information I will be using it soon enough. My question is an easy one and I hope I didn't miss the answer while I was reading the content and all of the questions. On your sample of the Request for production it states to enter the name of the cc company above my name on the upper left of the form. Am I safe to assume that I put in the collection agencies name instead of the original CC company?

Thank you in advance.

And thank you again for all that went into this informative hub. ;)


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

AnthonyEH,

You are very welcome, and thank you for your kind comments. To answer your question, to cover all the bases, I would put the name and address there just the way it appears on the summons. Naturally, the plaintiff is going to list the original creditor as if they are the ones suing you, but I play their game right back and put that on there with their name and address. You are not really being sued by the original creditor...they know that, you know that, and the court knows that. But, if you ever wanted to get really technical and sue them, there could be a case made for their misrepresenting certain facts, and one of them would be claiming to sue on behalf of the original creditor. Putting both names on there along with the mailing address of the plaintiff (collection company) is fine. Just make sure that you send a copy to the court to cover all bases.

Good luck to you and best wishes,

Brian


Ginger 3 years ago

In order to do the Request for Production do you have to do so many days before the trial date? I wanted to wait as long as possible before sending this over to the Plaintiff. I live in PA if that helps! My new court date is March 28th. I've also been reading about attorneys having to have a license number. My attorney provided his identification number on my court papers, I assume this is the same thing. I plan on checking this number with a web site that I found to see if they can even practice! I heard horrible comments about the people that are suing me! I hear that they are tough which really scares me.


Ginger 3 years ago

Let me reword that I want to check his license number to see if the plaintiff in my case is licensed. They provided me with a 5 digit identification number. The site that I found the information is a New York web site.


bigbears profile image

bigbears 3 years ago

I am in FL and have a May trial date set by judge from Portfolio Recovery for $1500...the documents they attach to the complaint show activity on card last year but debt goes back over ten years...they would not give me information on the phone when I tried to get original contract?...should I go to attorney for help?...do motion for discovery?...work full time, take care of developmentally disabled daughter, never received child support but have always worked to provide for her...economy has impacted my ability to earn enough...they $1500 and don't know if amount is legitimate.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

bigbears,

I always say, if you can afford an attorney, then by all means, get one. They are worth every penny. Granted, it does take research to find one who is not expensive, but they do exist. If you cannot find an attorney whom you can afford, then do your homework and prepare for court.

The fact that your card was still being used last year means that it is not out of the statute of limitations, but it may be far enough away to be charged off as bad debt. If it has been charged off, and the plaintiff suing you is another collection company trying to buy a bad debt, then follow my article and prepare accordingly.

Since you have already apparently been summonsed to court, you should send a request for production to the plaintiff immediately. You only have thirty days from the date of being served to be able to file this, so I would not waste any time getting that done.

Do not admit to anything. Make them prove everything. Read my article, read some of the previous posts by people like Mike who used my material extremely well and won his case. Study, study, study. That is what everyone on here who has won their case has done. If you do that, you should do okay. Do not be scared by their bluff tactics. If they are not the original creditor, and the original creditor has charged off the debt, stand your ground and know your rights.

Good luck to you,

Brian


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

Ginger,

You want to send a request for production within thirty days (may vary from state to state) of being served the summons to come to court.

You may hear horrible things about some of these blood suckers, but put that out of your mind. Yes, they are horrible to people who do not know their rights. Study my article until you know it well. Read the posts on here by people who read my article and put it to use to win their cases. They did it, and you can, too.

I always say, if you can afford an attorney, then by all means get one. But, if you cannot afford one, then study my article until you fully understand it and are ready to apply its material.

Many of these collection companies violate so many laws in trying to collect on these charged off debts, because it is big business, even if they lose a few. They throw a lot of legal slop into the courts in hopes that most of it sticks. So, throw them for a real loop. Read my article, know your rights, and put up the best fight you can. I won, and so have many others who have followed the material in my article. I hope it helps you, too.

Best wishes,

Brian


e.m. 3 years ago

Brian,

I have to deal with a new situation. The truth is I have to deal with more than one creditor. This new situation is: the bank charged off the debt a while ago, I've seen this in my credit report. I have received a letter from a law firm, stating that 'they have been retained to collect for their client: the bank...I have checked this law firm's profile at their website, and it's said there that 'they provide creditors' rights representation '.

Question: is it possible that the bank would charge off debt - then still retain a law firm to collect the debt [for the bank] ?!? OR the law firm is collecting for themselves. Between the services the law firm provides, there is a 'debt buyer group' - that's why I think they 'own' the debt right now....

Any thoughts ?!.....

Should I proceed as usually, with sending them a request for validation whenever I consider it's ok to do so - now, or after a while?

Sometimes, I think that sending them a 'request for validation' and a 'cease and desist' letter - this makes them pull back and give up, and sell the debt to another debt buyer. But - how long will this take? will this go forever, until the statute of limitation comes in [in my state SOL is 6 years]? I believe that maybe it is better to just go to court and get over this with whatever judgment comes in the way, hoping for one in my favor.

Thank you.

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

Your case sounds like two different scenarios, depending on how I read this. On one hand, the bank has charged off the debt, and a collection company has bought the bad debt with no genuine connection to the original creditor, the bank. The other way seems like the bank charged off the debt and then retained a law firm to collect on the back balance. For the first scenario, I would not be too concerned, because that would be what my article is about - collection companies buying bad debt and trying to "own" them. However, there are legal situations in which a company may "charge off" an outstanding balance, then go after that outstanding balance by using a collection office that is connected to the original creditor in some legal arrangement. In this situation, the original creditor is asking the collection company to get the money owed them by any means.

So, I go back to what I often say, if you can afford an attorney, I would get one and have the attorney sort this out for you.

Brian


e.m. 3 years ago

Brian,

But even in the second scenario, where the law firm will try to collect for the bank - I am still anxious about finding the truth, which I need to find on my own, because nobody will tell me about it [the bank or the law firm]. How can I be sure that the law firm works for the original creditor? How sure can I be regarding how the debt got in their possession?

Therefore, I decided to treat them like any other collection agenciy,

and if they work tight with the bank as their client, then they will be able to provide answers to all my requests.

Of course, I would like to see a proof of how the debt got into their possession - a contract between the law firm and original creditor related to their business relationship.

If they cannot bring answers to what I'm asking, then I am sure that they are debt collectors and must be treated as all other debt collection agencies.

e.m.


e.m. 3 years ago

Brian,

I was doing some research about the 'law firm' in case, and I found out that it is registered as a 'collection agency'. I also found out from a forum related to their name, that they act like every other collection agency, rude on the phone, even trying to 'create' a 'recent payment for a customer, strategies of intimidations...

This 'law firm' called my house few times, didn't find me, but also did not left a message. I think I am entitled to call the bank they say they work for - and ask the bank if they really hired the law firm to collect for them. I've heard that the bank must give me a true answer.

Do you think that it will be wrong if I will send them a request for validation - though they supposedly are hired to collect for the bank?

e.m.


Hanavee profile image

Hanavee 3 years ago from Pennsylvania Author

e.m.,

Sounds to me like you are doing everything right. If they indeed worked for the original creditor, they would have no difficulty producing everything you requested in the request for production. If they were hired for the job, instead of being a debt buyer, they would have everything to validate their claim, and would have already produced it. One thing I would not do is contact the original creditor. No need to throw support to the collection company unwittingly.

I think you are on the right track. Just work on defeating the collection company by treating them as a debt buyer.

Brian


sunset777 3 years ago

Brian,

I just filed my answer within the deadline from a creditor whom bought my account in 2007 from the original creditor whom went bankrupt.I have a hearing in 2 weeks.

When do I ask for production of proof to the creditor?

before the hearing or before a scheduled court date?

and can I get this form from any court house or the one I have to appear for the hearing?Thank you!


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