You Can Beat Credit Card Debt Collectors

Updated on July 8, 2018
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Brian Gray obtained his degree in Language from Lee University and has been a published author and professional writer since 1985.

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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.

Debt collection is a big business always looking for growth opportunities. In January of 1990, credit card debt was at $214 billion, but by January of 2009, during the greatest recession in history, it grew 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. But 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.

What to Do

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.

Answer the Summons

Read the letter that comes from the court. It will state how many days you have to file an answer: that is, an answer saying that 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!

File a Request for Production

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

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

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. You are telling him that you may just know your rights, that he is going to have a battle on his hands, and most of all, 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.

Why You File a Request for Production

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.

What to Say on the Day of the Hearing

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.

You want to state this:

"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."

3. Defendant demands 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 card claim 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 a 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:

"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 Plaintiff.

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.

"The Fair Debt Collection Practices Act states that the debt collector cannot collect any amount of money that is not authorized by the agreement creating the debt or permitted by law. Because there is no agreement between the collector and the alleged debtor, no collection can be sustained.”

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. In any case, because the collection company cannot provide the same services as the original credit card company, adding this new requirement 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.

More Things You Should Know

Statute of Limitations

Most collection companies know not to go after debts that are past the statute of limitations, but, there are still those who do. But, note this very important point: once the debt has passed the statute of limitations, they cannot take you to court. They can contact you and ask you to pay the outdated debt, but they cannot take you to court. However, if you agree to make any payments to them, or acknowledge to them that you owe the debt, you may reset the clock, so to speak. This is called "re-aging the debt." Be very careful with regard to this factor. So you should know that most States will not allow claims on debts that are more than three years old, though in other states that statute of limitations is four years. There are also a few States that go out even further. 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 have a right to have the suit thrown out on this technicality alone.

Is the Debt Satisfied?

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 should be able to 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.

Debt Collectors Need To Validate the Debt

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.

Here is a very valuable article to read: https://www.nolo.com/legal-encyclopedia/debt-collection-defense-requiring-that-the-collector-document-the-debt.html

The Attachment Rule

When a junk debt buyer sues you, most State rules require, as per the Attachment Rule, that the debt collector must attach a copy of the account or written contract, and if they cannot do this, then they must state why the document is not attached. If the collector fails to do this, then you can file a motion with the court requesting that the court require them to produce the missing documents. Without these documents, you may petition the court to dismiss.

The Amount For Which You Can Be Sued In Small Claims Court

There are limits to the amount a collector can sue for in Small Claims Court. This will vary from State to State, so research your locality to see what they are.

Check Every Rule, and Good Luck

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.

The Federal Trade Commission explains your rights on its website: https://www.consumer.ftc.gov/articles/0149-debt-collection.

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

Brian Gray

Additional Materials For Your Help

This article from the Loyola Consumer Law Review describes how creditors file improper collection complaints.

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

1) 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

2) 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.

The article describes how Pennsylvania courts require specific pleadings, and debtors can challenge pleadings that aren't specific enough.

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.”

Illegal Collection Efforts in the News

Federal Government Orders Firm to Stop Unsupported Collection Lawsuits

Pressler & Pressler, a New Jersey firm, was ordered in 2016 by the Federal Consumer Protection Bureau, which called it a "lawsuit mill," to stop filing unfair collection lawsuits. NJ.com reported that FCPB's order said that "before threatening litigation, agents must have original account-level information with the consumer's name, the last four digits of the account, the claimed amount, a chronological list of all the prior owners of the debt, a copy of the bill of sale and other records, the orders say."

Fraudulent Debt Collection is Big Business

Six people in North Carolina agreed to plead guilty to a $6 million fraudulent debt collection conspiracy that operated from 2011 to 2015, according to the Charlotte Observer.

This is possibly the best one yet: https://www.consumerfinance.gov/about-us/newsroom/cfpb-takes-action-against-the-two-largest-debt-buyers-for-using-deceptive-tactics-to-collect-bad-debts/

Information From NOLO on Debt Verification

Nolo.com summarizes the principle of "debt verification" with advice similar to what I've given here that applies to many states. NOLO says:

If a debt collector sues you, most state and local procedural rules put even heavier documentation requirements on both the debt collector and creditor. In many states, a creditor or debt collector that is suing for collection of an account must:

  • attach to the complaint a copy of the account or written contract or agreement, or
  • state in the complaint why the account or document is not attached.

This is often referred to as the “attachment rule.”

If the creditor or debt collector doesn’t do this, you may be able to get the lawsuit dismissed. Or, you can ask the court to require the creditor or debt collector to provide the missing documentation and information. This is often called “requesting a more definite statement.” In either case, you’ll have to prepare and file a formal motion with the court.

What Documentation Must the Creditor Provide?

But what must the creditor provide by way of documentation? At a minimum, it must produce:

  • A copy of the original written agreement between the parties, such as the loan note or credit card agreement, preferably signed by you.
  • If the account has been sold to another creditor, then that creditor must prove that it has the right to sue to collect the debt. This usually means producing proof that the debt was assigned to it. Often such proof will be a bill of sale, an “assignment”, or a receipt between the last creditor holding the debt and the entity suing you.

What If the Collector Cannot Produce the Assignment?

If the creditor or collector suing you fails to produce proof of the assignment, then you can ask the court to dismiss the lawsuit. Again, you’ll have to prepare and file a formal motion with the court.

Counterclaims if the Collector Did Not Previously Verify the Debt

If the debt collector suing you previously did not verify the debt after you timely requested debt verification, you may file a counterclaim against that debt collector within the same lawsuit, requesting your own damages. Some states also allow you to countersue for damages against the creditor itself for failure to verify the debt.

An Important Article To Read From The New York Times

https://www.nytimes.com/interactive/2014/08/15/magazine/bad-paper-debt-collector.html

This is an eye-opening article written by Jake Halpern for the New York Times about the practice of junk debt buyers. I highly recommend reading this so that you can see what is going on behind the scenes with regard to charged off debts. This is a huge money making business, with junk debt buyers raking in billions.

Here is a quote:

“...buying up the right to collect unpaid credit-card bills. When debtors stop paying those bills, the banks regard the balances as assets for 180 days. After that, they are of questionable worth. So banks “charge off” the accounts, taking a loss, and other creditors act similarly.

The scale is breathtaking. From 2006 to 2009, for example, the nation’s top nine debt buyers purchased almost 90 million consumer accounts with more than $140 billion in 'face value.' And they bought at a steep discount. On average, they paid just 4.5 cents on the dollar. These debt buyers collect what they can and then sell the remaining accounts to other buyers, and so on. Those who trade in such debt call it 'paper.'"

From New York Times article by Jake Halpern

More from this article:

"Siegel quickly discovered that when he bought the right kind of paper, the profits were astronomical. He obtained one portfolio for $28,527, collected more than $90,000 on it in just six weeks and then sold the remaining uncollected accounts for $31,000. Siegel bought another portfolio of debt for $33,388, collected more than $147,000 on it in four months and sold the remaining accounts for $33,124. Even to a seasoned Wall Street man, the margins were jaw-dropping."

Another thing Halpern pointed out was that original creditors do not care what happens to the debt after they have sold it off to junk debt buyers. Here is another very enlightening quote:

"According to American Banker, in a series of transactions in 2009 and 2010, Bank of America sold millions of dollars of charged-off debt to a company in Denver called CACH. In the sales agreement, Bank of America said it would not make 'any representations, warranties, promises, covenants, agreements or guarantees of any kind or character whatsoever' about the accuracy of the account information it was selling."

More from Halpern's article:

"In 2009, the F.T.C. said in a report: 'When accounts are transferred to debt collectors, the accompanying information often is so deficient that the collectors seek payment from the wrong consumer or demand the wrong amount from the correct consumer.'”

Here is one more reason from Jake Halpern's excellent about article why you should be questioning the legal right of the entity claiming to own your debt:

"The notion that a portfolio of debt could be stolen may seem improbable, but plenty of debt brokers are all too willing to sell 'bad paper.' Such brokers sometimes 'double sell' or 'triple sell' the same file to multiple unsuspecting buyers. Other times, a broker may sell paper that he does not own and obtained by nefarious means."


Letter Requesting Validation of Debt

Before you are notified that you are being sued by the plaintiff, but once the junk debt buyer notifies you that they are intending to collect the alleged debt, send them this letter requesting validation of the debt, and give them 30 days to comply. Save proof that you mailed this letter. Here is the letter:

I am sending this letter to you in response to a notice I received from you on (here, cite the date of the letter you received). Be advised that this is a notice sent pursuant to the Fair Debt Collection Practices Act, 15 USC 1692g Sec. 809 (b) that your claim is disputed and validation is requested. This is NOT a request for “validation” or proof of my mailing address, but a request for Validation made pursuant to the above named Title and Section. I am hereby requesting that your office provide me with competent evidence that I have any legal obligation to pay you. Please immediately provide me with the following:

*What the money you say I owe is for;

*Explain how you calculated what you say I owe:

*Provide me with copies of any papers that show I agreed to pay what you say I owe;

*Provide a verification or copy of any judgment if applicable;

*Identify the original creditor;

*Prove the Statute of Limitations has not expired on this account;

*Show me that you are licensed to collect in my State; and

*Provide me with your license numbers and Registered Agent.

If your offices have reported invalidated information to any of the three major Credit Bureaus (Equifax, Experian or TransUnion), said action may constitute fraud under both Federal and State laws. Due to this fact, if any negative mark is found on any of my credit reports by your company, or the company that your represent, I will pursue legal action against you for the following:

*Violation of the Fair Credit Reporting Act

*Violation of the Fair Debt Collection Practices Act

*Defamation of Character

If your offices are able to provide the proper documentation as requested, I will require at least 30 days to investigate this information, and during such time, all collection activity must cease and desist. Also, during this validation period, if any action is taken which could be considered detrimental to any of my credit reports, I will consult with my legal counsel. This includes any information to a credit reporting repository that could be inaccurate or invalidated, or verifying an account as accurate when, in fact, there is no provided proof that it is.

If your offices fail to respond to this validation request within 30 days from the date of your receipt, all references to this account must be deleted and completely removed from my credit file, and a copy of such deletion request shall be sent to me immediately.

Further, no telephone contact shall be made by your offices to my home, or to my place of employment. If your offices attempt telephone communications with me, including, but not limited to, computer generated calls or correspondence send to any third parties, it will be considered harassment, and I will pursue legal action. All future communications with me MUST be done in writing and sent to the address noted in this letter.

What Is Subrogation?

What is subrogation? Subrogation is the doctrine that allows a third party to be substituted for the creditor. The party being substituted agrees to pay the original creditor for the debts, and this allows the third party, known thereafter as the subrogee, the rights to collect the debt as were originally held by the original creditor.

Here is the legal definition: Subrogation is the substitution of one person in the place of another with reference to a lawful claim, demand or right, so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or securities. The one who initially discharges the obligation is called the "subrogee" and the party who is compensated is the called "subrogor." In other words, the subrogee stands in the shoes of the subrogor.

Subrogation can operate through a written contract titled a “subrogation agreement.” Since subrogation is an equitable remedy, all defenses and theories that apply to equity laws are equally applicable when dealing with subrogation issues.

There are general rules that shape and guide issues of subrogation.

Legal, or equitable, subrogation is not available to volunteers. What this means is that an entity with no connection to the debt cannot step in and claim the status of subrogee. The subrogee must satisfy the debt, because he does so to secure his own personal interests.

Legal subrogation is not available until the subrogor is fully compensated. This means just what it says, i.e., the original creditor must be fully compensated. More on this will follow.

Conventional subrogation does not require full compensation of the subrogor. “Conventional subrogation” is technically not the same as “legal subrogation.” Conventional subrogation is created by contract, while legal subrogation is implied by law and is based on equitable considerations. An entity who interjects themselves into the debt situation will not be granted rights under subrogation without a valid written agreement.

There are three entities involved in the proper interpretation of subrogation. They are: the entity that causes loss, the entity that is subjected to that loss by the loss causer, and the final one of the three is the loss insurer. The foundation of the laws that were written regarding subrogation are restitution, deterrence and fairness, and these three bases form the right and proper goals of any future legal evolution. All laws coming since this foundation should be weighed against that foundation and its original intents. The laws of subrogaton were NOT created for the purpose of self-enrichment schemes concocted by junk debt buyers. The laws of subrogation are being abused and corrupted by junk debt buyers.

For the moment, I hope these few statements will give you, the reader, some material to research and study. I will be adding more here when time permits. Basically, if you read the erudite New York Times article written by Jake Halpern which I linked and referenced, this should begin to give you even more tools with which to fight these blood suckers. They need to show more than just that you once upon a time may have had an account with some credit card company. What is their legal right of subrogation of the debt? How do they own your alleged debt? Where is their contract? Where are their proofs? Research this, study this, and hammer it home! Make them lose!

Two Good Subrogation Definitions

Sometimes, using a different wording for a definition can really help clear up a meaning. So, here are two definitions that I thought might be helpful in this discussion:

"A subrogee is usually the insurance company which has insured the party whose expenses were paid. Thus, the subrogee insurance company may file a lawsuit against a party which caused the damages to its insured which the subrogee paid." https://legal-dictionary.thefreedictionary.com/subrogee

"A subrogor is person or entity that transfers his/her/its legal right to collect a claim to another (subrogee) in return for payment of the subrogor's expenses or debts which he/she/it claims. Thus, a person injured in an accident (subrogor) is paid by his/her/its own insurance company (subrogee) for the damages, and then the insurance company sues the party who apparently caused the damages." https://legal-dictionary.thefreedictionary.com/subrogor

More About Subrogation

Traditionally, credit card companies attempted to collect their own debts. If this initial process was ineffective, then the credit card company assigned the accounts to collection companies. If the first collection company failed to collect, then the credit card company would re-assign the account to another collection company. Eventually, the credit card companies deemed this process too time-consuming and unproductive to be of financial value. They soon hit on a new idea—sell the debt. They got rid of their collection departments and went into a new business venture for selling off bad debt.

Around 1999, the credit card industry began to analyze the value of purchasing subrogation rights. It sounded like a great idea at first, but the credit card industry decided against it, because there would be legal problems once a case got into the courts and some smart lawyer decided to challenge the plaintiff with “First Dollar,” the term that refers to dealing with the insured’s (the credit card company) deductible. If one studies case law, various States require that the insured (the credit card company) be made whole before the insurance carrier can reap the benefit of subrogation. Under this statute, the credit card company has to get paid “first dollar” until the original creditor has been “made whole.” If the claim is purchased from the insurance company, what benefit is there for the insurance company to go to court on behalf of a junk debt buyer? Further, if the insurance company goes to court, how would it look for them to have their attorney subpoena the credit card company? So, the collection companies found an easier way around this difficulty.

They found that they could sue the debtors in court, the debtors would know that they owed the money, the debtors would run and hide, and therefore, once the case got to court, and the debtor did not show up, a default judgment would be issued, the debtor would now be indebted to the collection company, and a new and enforceable contract would now exist between the collection company and the debtor. And here is the Achilles heel of this: when a defendant answers, and a trial is scheduled, the insured and the claim representative are absolutely necessary in court in order for the plaintiff to prevail!

So, here are some things to keep in mind: Do not discuss the debt on the phone with collection companies, as they are recording your call and will use your admissions in court. Do NOT sign any promissory notes, as this is entering into a new and binding contract to pay the collection company the amount they are requesting. Answer the summons when you are sued, and tell the court that you will appear. Then, prepare your defense wisely, and go to court ready to win.

Transferring Your Account

All credit card companies can place a clause in your original credit card agreement which will read something like this: "We may transfer your Account and our rights under this Agreement to another person or company. That person or company will take our place in this Agreement. You must pay that person or company the amount you owe us on your Account (instead of paying us) if you are asked to do so." For this, I go back to one of the earlier points in my article: Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.


The collection agency does not have any signed agreement with you, and chances are that they probably do not even have a contract with the original creditor showing legal right of subrogation of the debt. The clause in the original credit card agreement is read to mean that the credit card company can transfer your account to another credit card company. While this point may be debated by some, I would argue in favor of the defendant and against the plaintiff on this one.

The Order of Transition in Credit Card Debt

Once the Account Becomes Delinquent - At 180 days from the last point of payment activity on an account, the company will usually designate that account as uncollectible. However, some companies may do this sooner, or wait a little longer, and that is their prerogative. When the company decides on this action, it will “write off” the account and list that debt against its earning for accounting purposes. This allows the company to reduce the amount it owes on taxes. The debt is now listed as “charged off.”

Charged off debts are still owing -The credit card company still owns the debt, and you still owe them the final balance. At this point, the credit card company can decide to pursue the debt themselves, or they can sell it to a junk debt buyer. If the bank sells the debt, they will adjust their accounting accordingly once the debt has been sold.

Forgiven Debt - The credit card company has the option of forgiving the debt, which means that they no longer expect you to pay. This, thus, makes the debt an income for you that must reported to the IRS, if it is over $600.00 , and you will then be issued a form 1099-C. This also means that no one should be coming to collect from you. The debt was forgiven.

Credit Report - Until the debt is paid in full, it will remain showing as unpaid on your credit report.

A Deceptive Collection Practice

Junk debt buyers often want you to think that they are the original credit card company coming after you. For them to state this, when it is not fact, is fraudulent and illegal. But that does not stop them from trying to make you think that they are representing the original credit card company by using clever wording that skirts close to the edge of illegal. Here is an example of one letter from a collection company.

"Dear (Your Name Here),

The above referenced account has been referred to our office for collection of the balance in full. Previous attempts have been made by our client to resolve this debt voluntarily. As of this date, those attempts have not been successful. (Name of the collection company here) has been authorized by our client to provide the necessary effort to collect this debt. We recommend that you take advantage of this opportunity to pay the balance in full to prevent further collection activity."

Below this paragraph was the obligatory notification that you had 30 days to dispute the validity of this debt, but what most people tend to do is this; they read this first paragraph, think their original creditor is coming after them, they panic, and their brain fogs over. What are they missing? Lots!

First of all, in this particular case, this was a letter from a junk debt buyer, not the original creditor. So who, you may ask, is "their client?" Good question! Because it most certainly was NOT the original creditor. Why? Because this account had been closed and charged off due to a bankruptcy taken by the person who held the original credit card. That account was written off in 2003, and here was this junk debt buyer posing as representing the original creditor...in 2009! This account was closed and now was time barred by statute of limitations, yet here was this junk debt buyer insinuating that they had a "client" relationship with the original creditor. A good lawyer could get this junk debt buyer in a lot of trouble.

Consider this as well, the junk debt buyer is warning the recipient that they should pay the "full balance" so as to "prevent further collection activity." First of all, this junk debt buyer bought this bad debt for about one cent per dollar, so, for their investment of $50, they were trying to collect $1500. It reads: "Please detach the upper portion of this notice and return with your payment in the enclosed envelope." Nice try, blood suckers.

One of My Readers Shared This Exceptional Material

This exceptional material that I have placed here for my readers was shared with permission from Rodney Miner. Kudos to Rodney for sharing this, and kudos to him for his great win! May this material help others in the battle.


Rodney Miner

Kellogg, Idaho 83837

208/786-2810

Defendant

IN THE DISTRICT COURT FOR THE FIRST JUDICIAL DISTRICT FOR THE STATE OF IDAHO, IN AND FOR THE COUNTY OF SHOSHONE

MAGISTRATE DIVISION

Cavalry SPV I, LLC,

Plaintiff,

vs.

Rodney Miner,

Defendant.

Case No.: CV-2017-586

RESPONSE TO MOTION FOR SUMMARY JUDGMENT

Rule 56 states that a court should only grant summary judgment if the moving party shows that there is no genuine issue of material fact. Defendant Rodney Miner, pro se, does hereby submit his Response to Plaintiff’s Motion for Summary Judgment. Defense shows that none of the evidence submitted in PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT is admissible, therefore, Cavalry SPV I, LLC failed to demonstrate that it is the owner of the account in question. Defendant asks the court to deny the PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT.

MEMORANDUM OF POINTS AND AUTHORITIES

I. Fact

Cavalry SPV I, LLC Has Failed to Provide Any Admissible Evidence to the court.

Legal Argument

The supporting affidavits and the documents attached to them lack evidentiary underpinnings.

There is not sufficient demonstration of the competency of the affiants to testify, there is not sufficient foundation for the documentary evidence, and there is no evidence of the necessary linkage between the bulk account sale and the individual account of the defendant. The entirety of the documents submitted for motion for summary judgment by Plaintiff consist of two affidavits, Bill of Sale, Notification File, four credit card statements and a copy of the cardholder agreement.

The affidavits would be admissible under the Idaho rules which state that business records are admissible given a statement from a custodian of business records which are created in the normal course of business. This rule has long been held to a high degree of veracity. Christensen v. Rice, 763 P.2d 302, 114 Idaho 929, 934, 763 P.2d 302, 307 (Ct.App. 1088).

Idaho rule 803(6) Hearsay Exceptions; Availability of Declarant Immaterial outlines what are not excluded by the hearsay rule for records of regularly conducted activity.

Idaho Rule of Evidence 902(11) provides for the self-authentication of certified records of regularly conducted activity.

The two affidavits submitted with the request for summary judgment must meet the stipulation of these two Idaho Rules.

The Affidavit by Shannon Wiltgen, the only one offered by an employee of Synchrony Bank, states that she is a Documentation Specialist and that her bank sold a pool of chart-off accounts to


Cavalry SPVI, LLC on 3/23/2017. Wiltgen states, “As part of the sale of the Accounts, electronic records and other records were transferred on individual Accounts to the debt buyer.” Wiltgen also states, “These records were kept in the ordinary course of business of Synchrony Bank.” Wiltgen, as employee of Synchrony Bank working with the ordinary business records of Synchrony Bank falls under the exception to the hearsay rule.

The Synchrony Bank records would have been ordinary records until the account data files were were culled, separated, reorganized and restructured into a separate electronic file. This process of creating the new electronic data file was not the mere daily data entry of ordinary record keeping. Nor was it ordinary record handling to transfer this reorganized file to another business. Wiltgen states, “The Creditor has a process to detect and correct errors,”. Though Wiltgen is a Documentation Specialist there is no evidence of the algorithms or criteria used for the selection of accounts or error free process. If this file were to be used in evidence, substantially more foundational information would have to be provided, probably by an expert witness who has substantially more background knowledge than demonstrated by Shannon Wiltgen’s Affidavit. The affidavit does not provide the foundation to testify that this file was accurate, or complete, or reliable for later use by Cavalry SPV I, LLC. The reorganization of the ordinary data into a culled data file to be transferred to another company created non-ordinary business data that falls outside of the rules of I.R.E 902(11) and I.R.E. 803(6), making Shannon Wiltgen’s Affidavit inadmissible. MIDLAND FUNDING, LLC,. CV- 1 4- 8 3 O-C. Plaintiff/Respondent, vs. MEMORANDUM DECISION. BARRY STIMPSON.

In the second affidavit Sheila Pinckney states she is employed by Cavalry Portfolio Services, LLC (CPS), but “preforms collection services for Cavalry SPV I, LLC”. Under her signature line is says, “Legal Administrator”. Pinckney states, “I am familiar with the manner and method by which CPS and Plaintiff maintain computerized account records and documents for account holders.” It is unclear how these two companies share computer information. Pinckney goes on to state, “CPS and Plaintiff maintain such records in the ordinary and routine course of business and it is their regular business practice to accurately record any business act, condition or event onto the computer record maintained for the accounts, with the entries made at or very near the time of any such occurrence.” In effect, Pinckney as Legal Administrator of Cavalry SPV I, LLC, is testifying that Cavalry SPV I, LLC by Pinckney has authorized CPS, acting through Pinckney as its legal specialist, to prepare the identified documents. Therefore, the same person is authorizing the action and carrying out the action. It is a stretch to put all of these evidentiary steps onto a single witness. The real problem is a different one. Though we don’t know which company holds the business data or how they share it, we do know the relevant information is the electronic data file that was transferred to Cavalry SPV I, LLC from Synchrony Bank. The relevant data is the existence of the separate account for the Defendant, the identifiers of that account, the transaction history of that individual account while it was active, and the balance due upon its transfer to Cavalry SPV I, LLC. None of this data was created or sourced into the computer records while they were maintained by Cavalry SPV I, LLC or CPS; all of it would have been created or sourced by the bank.

Sheila Pinckney may be qualified to explain what CPS did or Cavalry SPV I, LLC, with respect to its own records or data created during its time, but she cannot establish a foundation for the bank data — she has no personal knowledge, she was not a custodian of the bank’s records while they were with Synchrony Bank, and the records in the Plaintiff’s possession do not qualify as ordinary business records. Because the electronic file transferred to Cavalry SPV I, LLC did not come to the Plaintiff as ordinary business records of Synchrony Bank, it cannot be said that the data in this file became routine business records of Cavalry SPV I, LLC or CPS, maintained in the ordinary course of business. Therefore, the documents created by Pinckney from Cavalry SPV I, LLC’s or CPS’s copy of the electronic file from the transferred accounts could not be said to be routine records maintained in the ordinary course of Cavalry SPV I, LLC business. This means that Sheila Pinckney’s Affidavit is inadmissible and Pinckney did not have a foundation to be a witness to identify the source documents, the monthly statements or the cardholder agreement. Furthermore, she avers that she is an employee of Portfolio Services, LLC. This means she is not an employee of the bank or Cavalry SPV I, LLC, and therefore has no cognizable standing as either a custodian or qualified person to establish the nature of file data as a business entity, without first establishing an adequate foundation of the witness as a person with actual knowledge, and then establishing how she obtained any of the knowledge to which she testifies.

Without a witness from Synchrony Bank with knowledge and expertise to walk the court through the steps of culling the necessary data pertaining to the accounts which were to be transferred from the regular business records of the bank, then getting the data into particular computer files for transfer from one system to another, and finally in actually getting the data files transferred and up and running with Cavalry SPV I, LLC, there is no one to testify on behalf of the Plaintiff. Therefore the Plaintiff has no way to prove he owns an account for which he seeks payment and reimbursement of costs.

Finally, the transferred data files were not regularly conducted business activity and therefore are not admissible Hearsay exceptions as defined by Idaho Rules of Evidence Rule 803.

Next, we address The BILL of SALE. The bill of sale is signed by Ken Wojcik, SVP Collections & Recovery for Synchrony Bank. The BILL of SALE states that the Seller hereby transfers, sells, conveys, grants, and delivers to Buyer, its successors and assigns, without recourse except as set forth in the Agreement, to the extent of its ownership, the Accounts as set forth in the Notification File. There were no representations or warranties provided in the attached bill of sale. He would be competent to testify from personal knowledge that the electronic file was the mechanism used to transfer the accounts to Cavalry SPV I, LLC. He does not have the foundation to testify that the file transferred was accurate, or complete, or reliable for later use by Cavalry SPV I, LLC in managing collection efforts.

Further, Plaintiff does not include in Exhibits a copy of its contract with Synchrony Bank. It is therefore not shown whether Synchrony Bank has expressly disclaimed all representations as to the accuracy of information or the accuracy of the current balance or interest on the accounts it has sold to Cavalry SPV I, LLC. The Federal Trade Commission has stated that sellers disclaiming the accuracy of the information they sell to debt buyers is common and recurrent (FTC DEBT BUYER REPORT, supra note 2, at iii, 25). The Restatement (Second) of Torts describes a fraudulent misrepresentation as being when the maker “does not have the confidence in the accuracy of his representation that he states or implies” or “knows that he does not have the basis for his representation that he states or implies.” Without a copy of the underlying contract, Defendant has no objective way to assess the veracity of Plaintiff’s claim. The FDCPA is a strict liability statute intended to be “liberally construed to protect consumers” (Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1271 (11th Cir 2011). Scienter is not an element of proving an FDCPA violation. Misleading or deceptive representations made as a result of carelessness or negligence are actionable under the FDCPA. All a court needs to find for an FDCPA violation is that the communications from the debt buyer to the consumer would have been misleading to the least sophisticated consumer (Weston v. Northampton Personal Care, Inc., 62 A.3d 947, 1019 (Pa. Super. 2013)).

In Plaintiff’s submitted documents and brief there are two contradictory Balances which Plaintiff claims Defendant owes, in Exhibit 1 for $4,078.57 and in Exhibit 2 for $4,116.57, demonstrating thereby a lack of sufficient indicia of trustworthiness for accounting in this instance to be considered reliable (Thanongsinh v. Board of Education, 462 F.3d 762, 778 (7th Cir. 2006)).

Defendant is entitled to recover its costs.

III. Conclusion

There is a genuine issue of material fact that Cavalry SPV I, LLC cannot show ownership of the alleged Synchrony Bank credit card debt. Defendant respectfully asks that Summary Judgment be denied.

DATED this fourth day of January, 2018

_________________________________

Rodney Miner

Defendant Pro Se

COPY of the foregoing sent via U.S. mail this fourth day of January, 2018to:

John H. Wilkinson ISB #8597

Machol & Johannes, LLC

1412 W. Idaho Street, Set 238

Boise, ID 83702

Attorney for Plaintiff

Sent by: Rodney Miner

More Great Material Shared By Rodney Miner

Go to this link and study it well. Some really great material is in this case that was fought and won by one of our readers, Rodney Miner. He put up a great fight and won. Read this to see how he did it. Great job!

https://www.nclc.org/images/pdf/unreported/midland-v-stimpson_appellate_decision_12162014.pdf

Order To Dismiss Without Prejudice Provided By Rodney Miner

Notice, Cavalry had to pay the court costs to the defendant.
Notice, Cavalry had to pay the court costs to the defendant.

Here is the Timeline for Rodney Miner's Case

Here is the Rodney Miner suit Timeline.

11/07/17 Served SUMMONS

11/22/17 ANSWER TO COMPLAINT AND COUNTER CLAIM paid $136 to file

11/28/17 Received from the court NOTICE OF HEARING:

Pretrial Conference: Monday, January 8, 2018

Status: Monday, February 12, 2018

Court Trial: Wednesday, February 28, 2018

12/04/17 Arrived in the mail and a big heavy envelope full of legal documents — PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, MEMORANDIUM IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, PLAINTIFF’S STATEMENT OF COSTS AND DISBURSEMENTS, NOTICE OF HEARING schedule for 01/22/18 (schedule by attorney for summary judgment)

01/04/2018 Rodney filed, RESPONSE TO MOTION FOR SUMMARY JUDGMENT

01/08/17 Went to Pretrial Conference, reschedule motion for summary judgment hearing till 01/31/18.

01/22/18 Received in the mail from attorney STIPULATION FOR ENTRY OF JUDGMENT offering a reduced settlement.

01/31/18 Went to summary judgment hearing where case was dismissed.

If You Are Being Sued by Johnson, Riddle & Mark, Read This

I had a person write to me about a company that is taking him to court, and this company even claimed to be hired directly by Capital One. Everyone should remember this important fact: any collection company that states that they are directly hired by an original creditor must be able to prove that such a relationship exists, otherwise, this is a criminal offense, and you can sue them. I have often said that these blood suckers like to skate very close to the edge when making their harassing claims. So, do your homework, research them when they come after you making scary claims of representing your original creditor. Here is some very interesting material on Johnson, Riddle and Mark:


https://www.creditinfocenter.com/community/topic/318471-johnson-mark-llc-attorneys-or-debt-collectors-or-both/

https://www.ripoffreport.com/reports/johnson-riddle-mark-llc/draper-utah-84020/johnson-riddle-mark-llc-attorneys-for-plaintiff-capital-one-bank-usa-judgement-on-cred-504261

https://forums.debtcc.com/settlement/thread57219.html

Another Very Interesting and Educational Link

https://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/

Defending Junk-Debt-Buyer Lawsuits by Peter A. Holland

I found this extremely well-written and priceless gem of an article, and I give it my highest marks. You would do well to read it, make copies of it, and study it until you know it by heart. What an excellent resource! The article is titled:

Defending Junk-Debt-Buyer Lawsuits by Peter A. Holland

You can find it here:

http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2206&context=fac_pubs

Three cheers for Peter A. Holland for the best article I have ever read on this subject.

Questions & Answers

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    • Hanavee profile imageAUTHOR

      Brian Gray 

      8 hours ago from Pennsylvania

      Jason Lee,

      Humorously, I would almost send them back a blank statement with one sentence: "You answer mine, I answer yours."

      There are various opinions about this, some doing with the fact that some areas do not require the plaintiff to respond to a request for production. The way to test this is to file a motion to compel with the court. If your locale does not require compliance, you will find out right away. Still, I would not give up. With this regard, I would pay for a one-hour, private consultation with an attorney and ask them how to compel the request for production, that is, what loophole is needed to make them supply the requested items.

      If all else fails, document your request, then use that same tactic in court to say to the judge that you need the requested items to properly defend yourself. Who wins in court is the one with the best argument, never forget that, and remember who you are trying to convince...the judge.

      In the request for interrogatories, there are basically three categories: Questions dealing with innocuous material, such as your name and address, you can answer; Questions that would incriminate you, answer with our patent response, which is, "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." Thirdly, regarding any records that they are demanding, always remember that you are not required to maintain records. There is no law that says you must be a library of reference. If you just don't happen to keep records, tough cookie for them. So, if you do not have these requested records, so be it. And, I would tell them that they are required to have these records as proofs for THEIR case BEFORE filing a suit, otherwise, they lack sufficient proof to file in the first place, and that means they lack standing to be in court. If a plaintiff does not have sufficient proofs in hand at the initial filing of a suit, they are not permitted to legally file. This is important to remember and equally important to use as a defense, because, as we all know, THE BURDEN OF PROOF LIES WITH THE PLAINTIFF. That bedrock of law is so important, that I capitalized it for you.

      Good luck to you,

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      8 hours ago from Pennsylvania

      HeOtha,

      I am sorry to hear that it did not go well. I understand the judge's statements, and without a law degree, it is nearly impossible for the average citizen to stand there in court and offer the proper and winning legal defenses. You did your best, but they are lawyers, and you are not. You have a limited time frame in which to appeal, if you wanted to do so, but that would require an attorney, as there is no way to operate in appellate court without one. If you wish to appeal, make sure that you see an attorney immediately.

      At least you got to see some people win their cases and see why. Hindsight is always twenty-twenty, but it might have been educational to actually attend a court session or two beforehand just so that you could see how these things operate.

      I don't know your financial situation, but the nuclear option is always bankruptcy. That stops all debt collection permanently.

      Best wishes,

      Brian

    • profile image

      Jason Lee 

      13 hours ago

      Hello!!!

      First and foremost thanks for this information!!

      So im going through the process currently with Midland Funding. I have recently sent out a Request for Production. After 2 weeks of waiting, the Plaintiff didn't answer my request but instead sent a Request for interrogatories, Request for Admissions and Request for Production of Documents. They want me to respond withing the next 28 days. The questions in their documents are pretty much a recipe to failure if I answer. The Trial is scheduled Jan/End. What should my next move be?

    • profile image

      HeOtha 

      14 hours ago

      Brian,

      I lost. I showed up before the time of the hearing. When the judge started hearing cases, I counted that there were 8 cases before mine. They were all debt cases.

      The judge dismissed one case because the plaintiff was not there. I hoped the plaintiff in my case was not there. He did not give summary judgment to the debt collector in one case because he said the plaintiff did not prove it owned the account. So I had some hope. The other cases were default because the defendants were not there.

      Anyway when my case came up, he said that Cavalry had an affidavit from Citibank that had my name and account number. It said that my account was sold to Cavalry. He said that because the affidavit had my name and account number and said it was sold to Cavalry, that was proof they owned the account.

      Then he brought up my motion against Cavalry’s motion for summary judgment. He asked me why I sited Idaho cases when we are not in Idaho. I did not know what to say. He said that it was not a defense and that he had to grant for the plaintiff.

      At least I tried.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      31 hours ago from Pennsylvania

      EmmasGammy,

      When you say that you are being sued by a law firm for Capital One, that implies that Capital One is suing you directly. I get this so often from people who do not understand that, in the majority of cases, the debt has been sold off to a junk debt buyer who then poses as the original creditor in order to scare people into running. I am often tempted, when people tell me that they are being sued by the original creditor, to simply to tell them that they are going to lose, and then offer no advice, I am just that tired of having to explain this over and over. If I sound exhausted, frankly, I am. Here are three reason why I do not think you are being sued by Capital One: 1.) After six months of inactivity on an account, credit card companies routinely write off the bad debt; 2.) The majority of these bad debts are sold at junk debt auctions for pennies on the dollar; 3.) You mentioned statute of limitations, which is years, so if this is past the statute of limitations, then it is most certainly past the six months wherein it would be written off, and no credit card company is going to wait until statute of limitations has expired, then come after you.

      So, I would bet good money that you are being sued by a junk debt buyer, whose law firm is acting on their behalf, all while trying to make you think that they are the original creditor, and I have said this so many times in the posts that I am not going to say any more about why this is.

      Research the statute of limitations in your State, and if your case is truly past the limit, then that is all you need...it is time barred. That is your defense.

      Brian

    • profile image

      EmmasGammy 

      34 hours ago

      I have been sued by a law firm for Capital One. Most of the defenses you have listed seem to apply to debt collectors who bought debts. I know I could use the statute of limitations but which other ones can I use?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 days ago from Pennsylvania

      HeOtha,

      Good luck to you.

      Brian

    • profile image

      HeOtha 

      2 days ago

      Thank you Brian. My hearing is tomorrow. I will let you know what happens.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 days ago from Pennsylvania

      Confused,

      I don't see any reason that you could not request this information. Getting them to answer may be difficult, because that is one thing that they are not going to want to disclose, so you will have to think of ways to force the issue. I would argue that it is relative to your request for items to use for your defense, and especially, if I lost, I would argue that the amount they are alleging that you owe is unjust, because they have not, and cannot, justify the amount. That is a great point to hammer home, how, for example, do they pay ten dollars for something, then turn around and charge you one thousand for the same thing? Crucial to this argument is the legal phrase "scienti et volenti non fit injuria," which, if you read my article, asks how they are "damaged," that is, what have they lost, when they knowingly and willingly purchased a defective debt?

      Brian

    • profile image

      Confused 

      2 days ago

      Can I request proof of how much the jdb paid for the debt when I send the request for production ?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 days ago from Pennsylvania

      Ryan,

      I know how you feel about not wanting to rock the boat and start another war game. Sometimes, it is best to let sleeping dogs lie, and tiptoe away. Other times, you want to take a club and permanently silence that bad dog. The first scenario is usually the easiest and least complicated.

      In an "order nisi," the term means that, unless someone objects with cause as to why it should not become absolute, the ruling becomes final. Since various States and locales have slight tweaks on their procedures, maybe the clerk of the court could advise you as to any time periods relative to your locale for filing a request that the ruling for dismissal be made with prejudice, as in filing either before or after the order nisi becomes final.

      Good luck. You've done very well so far, and my guess is that the junk debt buyer has moved on and thrown in the towel on you and your case.

      Brian

    • profile image

      RyanKeithV 

      4 days ago

      Hi Brian, First off...I want to thank you immensely for all the great advice you have given me, and countless others on this site. I have written for your advice in the past and I do have another question. I had a credit card/collector sue me in the past, I took all your advice and sent back an answer. Now, I received a letter 8 months after all this took place for an "Order NISI For Dismissal" from Massachusetts District Court. If no action is taken from the Plaintiff it will be dismissed, and I'm assuming it would be without prejudice...should I do anything on this end as it says it will be dismissed in 30 days (19 days left for the Plaintiff at this point) or is there anything I can do without "making waves" to try and get it dismissed "WITH PREJUDICE"? I would appreciate any advice you have and thank you again!

      -Ryan

    • Hanavee profile imageAUTHOR

      Brian Gray 

      6 days ago from Pennsylvania

      T,

      I would attack their "proof" of assignment and the expertise and validity of their "witness." Something is fishy, and with most junk debt buyers, they live up to their reputation as blood suckers.

      As far as, how are they able to get a do over? You failed to object.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      6 days ago from Pennsylvania

      Joey D,

      I am unfamiliar with "...account stated in Wisconsin," and I do not know what you mean by "...the action is account based for the suit." However, Portfolio is a a junk debt buyer, and you should follow the usual protocol when handling this case, if you are going it alone, pro se. Answer the summons, indicate that you will appear, then study my article and the relative materials that I have provided here. A lot of people have beaten Portfolio, and they have outlined their strategies in the many posts that follow my article. Do some research there, and you will find a wealth of information to help you.

      Good luck to you,

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      6 days ago from Pennsylvania

      CamelJockey79,

      I would contact the credit reporting agencies to see what criterion they require to remove a contested entry. Sometimes, that is the only way to get anything done, getting proactive.

      Brian

    • profile image

      6 days ago

      I successfully fended off a motion for summary judgment because the plaintiff could not prove standing with their attached documentation. On the day of trial, before we were to see the judge, the judge requested we all sit with a mediator. Opposing counsel STILL couldn't prove standing on behalf of their plaintiff, but their witness (an employee of the collector) swore they had proof of assignment from the original creditor, but failed to bring it in print form. They had a copy emailed to their phone that was not admissible. The mediator admitted the case would be dismissed if we went up like we were supposed to, instead the mediator ordered opposing counsel to provide me with the (newly acquired) proof of assignment and set a new trial date. How are they able to get a do-over after failing to bring adequate documentation to trial? Shouldn't that just be considered their failing?

    • profile image

      Joey D 

      6 days ago

      Hi Brian Gray,

      I'm being sued by Portfolio Recovery Associates LLC. Unfortunately, I stumbled your article 2 days prior to attending the summons. I admitted nothing and read your first line on what to do first and the lady behind the counter said you don't do that here. I asked for the bill of sale and it will be mailed to me within 30 days. Also, she said if your defending yourself you should look up account stated in Wisconsin. I have googled it. However, was wondering if you had any advice or direction because the action is account based for the suit.

      Thank you for this article and prompt responses!

    • profile image

      CamelJockey79 

      6 days ago

      Since my case against Calvary was dismissed without prejudice, is there any way I can have it removed from my credit report? Or is it just on there for 7 years?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      7 days ago from Pennsylvania

      Anzhelika,

      In any pre-trial conference, I would request proofs, admit nothing, and seek a trial in court. They are the ones making the allegations, and the burden of proof always rests upon the plaintiff.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      7 days ago from Pennsylvania

      If Midland Funding is not pursuing this in court, or if you won a dismissal in court, either way, they would be required to remove it. My best advice would be to consult with a local attorney to see what remedies are available. You can also contact the credit reporting agencies and show them proof that the entry should be removed.

      Brian

    • profile image

      Anzhelika 

      7 days ago

      Brian, thanks for this article. In my case, was pre Trail conference setup. What is my strategy should be during this conference? Advice, pls. Thanks.

    • profile image

      nawao 

      7 days ago

      Dear Brian,

      Midland Funding has refused to remove the reporting from my credit. What should I do? I have written them severally, they instead said it was verified and agreed to desist from calling me or pursuing. But instead they left it on my credit and I need to buy a house and want it off. What should I do? What is the best and last step to take to get it removed.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      8 days ago from Pennsylvania

      HeOtha,

      By using Rodney Miner's answer, I would assume that means that you filed a motion to deny plaintiff's motion for judgment. If so, then the next move is up to the court to either deny the plaintiff's motion for judgment and grant a trial, or grant the plaintiff's motion. My guess is that the court would err on the side of caution and grant a trial. In either case, all you can do now is wait for the court to announce its decision.

      Good luck to you,

      Brian

    • profile image

      HeOtha 

      8 days ago

      Brian,

      Cavalry Portfolio sued me in July. They included a bill of sale from Citibank to Cavalry. There was also an affidavit from someone at Citibank that says the account was sold to Cavalry. It has the credit card account number and says that account was sold to Cavalry.

      I filed my answer using your defenses. I sent what you suggested for discovery. They sent back almost 18 months of statements. They did not send anything that has my signature. Then they sent me a motion for summary judgment. I used Rodney Miner’s answer . This was 2 weeks ago. I have not heard anything back. Is there anything else I need to do?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      8 days ago from Pennsylvania

      Theresa Bryant,

      The amount you say that you owe them is substantial, and my guess would be that it is worth their time and money to pursue this amount, rather than write it off. You may want to consult with a bankruptcy attorney, or consult with a debt relief company, one that works out payment arrangements with creditors while reducing the amount owed. In either choice, I would not sit idly by and wait for Capital One to make the first move.

      Brian

    • profile image

      theresa bryant 

      9 days ago

      i owed capital one $30,000 are they going to sue me?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      11 days ago from Pennsylvania

      I Am Ready To Fight,

      I would demand a thorough accounting. For example, how do they arrive at the amounts that they allege you owe? I would demand proof that this is your account, and redacted numbers on blank contracts prove absolutely nothing.

      The employee who is claiming to have knowledge of the debt, who are they, what is their authority to verify, by what virtue are they an expert on this matter, and how do they know anything about your alleged account? Grill them on this.

      Ask the plaintiff to show their legal right of subrogation of the debt, and ask them how much they paid for this bad debt. For example, if they paid $10 for a $1,000 bad debt, how do they justify the $990 mark up?

      And don't forget scienti et volenti non fit injuria, how are they injured when they knowingly and willing bought a bad debt?

      Good luck to you,

      Brian

    • profile image

      I am ready to fight! 

      12 days ago

      I have yet to be served but found that I was being sued. I went to the court office and looked over the papers and found that none of there documents have my account number , in fact where the account number normally is the information is redacted. I am in maryland and read somewhere that the information can be redacted ( i am unsure of how true this is). I plan to send them a request for production. Is there any way I can request that this information be revealed? Why is it redacted to begin with? also I notice that one of their employees stated that they had knowledge of the debt. Would this be considered hearsay?

      Also upon during research I read that the defendant has a better chance on winning if they request

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      Lisa,

      For all of the reasons that you have listed, these documents do not prove that they own a debt for which you are obligated. It sounds to me, from what you have written, that the original account has been sold and resold more than once through the chain of junk debt buyers, and the current one probably has little to nothing of the original contract and amounts. They need to show a proper accounting of how they arrived at the amount that they allege you owe, they need to show the original contract (although some jurisdictions don't require that), but at least they need to show how they can prove that you owed this debt. Further, I would demand that they show how they account for the amount they allege you owe, what was their accounting method, and they should also be required to show their legal proof of their right of subrogation of the debt. And I would ask them how much they paid for it, and how they defend the amount they are charging you, because they commonly purchase these bad debts for pennies on the dollar, paying as little as $10 for a $1,000 debt.

      Yes, these documents should be notarized.

      Good luck to you,

      Brian

    • profile image

      Lisa 

      2 weeks ago

      I am following your advice was served in Maryland with a lawsuit involving LVNV Funding LLC In regards to a previous Fingerhut bill. I filed A request for production As you suggested. I received in the mail several documentations ,Some statements and paperwork that supposedly prove ownership of the debt. I am a little skeptical of some of the paperwork they sent me . I am skeptical because The original agreement was not included , also there were approximately 11 statements (not including 4 duplicate statements ) that failed to list any purchases and there “proof of ownership “ which does not make reference to my name or any account numbers. The debt was supposedly sold to LVNV by another debt buyer. It included documents such as a transfer and assignments, bill of sale of original creditor or acquirer, account summary, assignments and bill of sale of which none of these forms state my name or any account number, nor were they notarized . One form stated as exhibit A mentioned something about receivable files , it has a transfer a group number and a portfolio number . I guess my questions are , Are these documents supposed to be notarized ? Is the receivable files and transfer group Proof of this debt ? How do you suggest I move forward?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      Bre,

      As I always advise, the best thing people can do is to hire an attorney, and if you cannot afford an attorney, at least try to pay for a one-hour, private consultation with one. As a last resort, you do it alone, pro se. If you are going to do this by yourself, then you really have to study well. That is why I have supplied so much material on this site, so that you have all the tools you need.

      If you have been served a summons, then you need to respond by telling the court that you intend to appear. Do that right away.

      Next, a piece of paper attached to their filing that they call an agreement is not an agreement between you and anyone else if you did not sign it. Plain and simple. If that is all they have, then they do not have sufficient proof to make a claim.

      To rattle their cages, I would send them a request for production, and send it via certified mail, return receipt requested. Give them thirty days to respond.

      Also, ask them to show their proof of their legal right of subrogation of the debt.

      Good luck to you,

      Brian

    • profile image

      Bre 

      2 weeks ago

      I been served with a suit. attached is an agreement, but it is not a true or real agreement. How do I handle this moving forward with my suit?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      JenJ60,

      Thank you for sharing. Although I wasn't able to open it without signing up, I would assume that it is a site where people are sharing their experiences with fighting junk debt buyers.

      Brian

    • profile image

      JenJ60 

      2 weeks ago

      I found this on another site.

      https://creditboards.com/forums/index.php?/topic/616543-mcm-after-me-found-a-website-with-info/

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 weeks ago from Pennsylvania

      Xaxaxa03,

      Here is a quote from a law firm advising clients on how to properly serve someone:

      "The person who serves your summons and complaint must complete an Affidavit of Service that states when and how your summons and complaint was served. The affidavit must be filed with the court to show that the defendant was properly served.

      If you use the constable, sheriff, or a private process server, they will either file the Affidavit of Service with the court or give it to you to file in your case. Proof of service should be filed with the court as soon as possible.

      If the court is not satisfied that the defendant was served, your case might not be heard. If service is incorrect for any reason, your case could be dismissed or continued."

      You have still not been properly served, so one of two things happens: The court hears the case from the plaintiff, and makes a ruling, which may or may not go your way; or, the court rules that the plaintiff has not shown proper service, and the case is either continued to a later date, or it is dismissed.

      I don't think the court is going to dismiss this in your hearing tomorrow. They will either issue a continuance, or rule for the plaintiff. If they rule for the plaintiff, you have grounds to request a trial based on the fact that you were not properly served.

      I know that you don't have time now to consult with an attorney before this hearing tomorrow, although I wish you had, but it only gets more complicated the more you try to keep from facing this. If it were me, personally, I would go to the hearing, and I would tell the judge that I was not properly served, that I just now found out about this, and that I needed time to prepare a proper defense. Any proper judge would grant you your wish.

      Brian

    • profile image

      xaxaxa03 

      3 weeks ago

      Good Morning Brian,

      As of today's date I have not been properly served. However, the processor left a note on my door and I did text him and tell him to let me know when he is coming back to receive the paperwork. He replied and said that he would let me know when he is back in my area. I have not heard from him. This morning, I went on the website to see if it said I was served or to see if my pre-trial hearing date has changed. It says non service on summons but it is still open I assume because the pre-trial is scheduled for tomorrow morning 11/19. I don't know what to do at this point. I was able to print the summons this morning and all the information for the plaintiff as well. What happens if I still go in person? I knew I was being served and from whom but they don't think I have this information of course. This is what it says on the website

      PRETRIAL Non-Service on Summons 2018-11-19 9:45 AM COURTROOM 302 3RD FL

      800 E TWIGGS ST

      TAMPA, FL 33602 Perrone, Frances M

      After tomorrow it may say closed not sure. How do you think I should proceed?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 weeks ago from Pennsylvania

      Shayla James,

      It is difficult to avoid being sued by these blood suckers. When they buy these debts, all they can think of is easy money, because most people run from them. When people don't show up in court, these debt buyers end up with a default judgment which then gives them access to your paychecks and bank accounts.

      So, the best advice is to be proactive. When they send you the dunning letter, before being sued, they give you thirty days to respond, and that is when you want to spring into action by sending them the request for validation of the debt. They cannot sue you then until they have complied with the request for validation, and if they cannot validate, they cannot sue. Nevertheless, they will usually send you a bunch of worthless paper, call that sufficient validation of the debt, then sue you in court. You then have to go to court and show why they have not validated anything, among others, such as proving they own the debt, proving they conducted an accurate accounting to arrive at the amount they allege you owe, and so forth.

      Study my article and the many additional items I added. Even the thousands of posts contain strategies that people discuss, strategies that won for them.

      Good luck to you,

      Brian

    • profile image

      Shayla James 

      3 weeks ago

      This is a very interesting article. I was wondering if you have advice of how to respond to avoid being sued by a debt collector. I'm trying to better understand what a debt collector is required to provide when a consumer request debt validation.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      Moby612,

      Study the materials that I posted from Rodney Miner. He outlined some very valuable techniques that he used in a very similar situation.

      I have never heard of any rule that only permits you to ask five questions in one request. Interrogatories are interrogatories. I would challenge that in court and tell the judge that you sought responses to your legal questions in an attempt to properly defend yourself, and the plaintiff refused to comply. You are therefore without the properly requested materials to offer a proper defense. Maybe you could file a motion to compel.

      Going back to the materials from Rodney Miner, all of those documents that they are throwing at you are chaff meant to make it appear that they have tons of evidence. Their value can be destroyed if you analyze them in the light of these questions: How do these documents prove the claims of the plaintiff? What connection do each and any of these have to the case? How is each of these a witness to the allegations? How are these documents proof to the claim of the plaintiff?

      Dig deeply into each of these pieces of paper that they sent you. They are trying to win by showing a lot of papers, but make them prove how each of these papers is relevant and completely connected to proving their case.

      Good luck to you,

      Brian

    • profile image

      Moby612 

      4 weeks ago

      Hi again Brian,

      You've been a great help so far but I have one final question as I prepare for my court date against Midland Funding on 11/16. The last contact I've had with the blood suckers attorney was their response to my request for production. After stating that they are not required to answer more than 5 questions in one request, they proceeded to send me a whole package of papers including affadavits and statements from what appear to be employees of midland funding and commentiy capital bank (the original creditor). There is nothing very specific in these documents other than a few mentions of my account number and name along with the sale of the account from commenity to midland. I have memorized many of the statements mentioned by you that should be used in court, but is there anything else I should do to prepare myself for the court date? I'm feeling a little deflated after their full response to my request for production

    • Hanavee profile imageAUTHOR

      Brian Gray 

      5 weeks ago from Pennsylvania

      Xaxaxaxa,

      Because this is a very complicated issue, I am going to give you a link to visit:

      https://www.illinoislegalaid.org/legal-information...

      Once you have read this, you might understand why I said that. You cannot be successfully sued in court without having been properly served, BUT, there are times when a person thought that they had not been served only to find that someone had accepted a server's summons without telling the person being served. If a ruthless, blood-sucking junk debt buyer wins a default judgment against someone without having properly served that individual, that individual can then find that their bank account has been seized, or their wages garnished, and it then takes a lot of work on the part of the defendant to get the court to suspend that judgment and order a retrial. The defendant has to prove that they were not properly served a summons in order to get the case suspended and a new trial ordered. A lot of work, which then makes one wonder why people don't just take the bull by the horns, contact the court and admit that they know they are being sued and will attend the trial, because that is the short route to what is almost always inevitable. There is the long, tortuous route, and there is the fast route, but rarely is there resolution without going to court and getting a judgment.

      So, the decision is yours, but avoiding these jerks is not what I would recommend. Sending them a request for production is sort of admitting that you know that they are suing you. They are hounds, they don't quit easy, so I would turn on them and bite them harder than they thought possible.

      Brian

    • profile image

      Xaxaxaxa 

      5 weeks ago

      Thank you Mr Gray, I work different hours all the time and there is never anyone at my place of residence. When I come home, there is always a note on the door from the server demanding that I call him to be served (2nd note the first one is still there). As I stated before the court date is scheduled for 11/19 but I have not been served any papers as of yet. Can they still issue a judgment against me without being served? Or would they re-schedule and try again? I thought they suppose to give me at least 30 days advance notice? Even if I was served I wouldn't be able to attend on that date and this gives me no time to re-schedule or make other arrangements. I still want to reply to CACH without having to appear in court. Should I still send the request for production document to them directly? I can use a p.o box as my return address. I hope this makes sense because my neighbor told me he is banging on my door and it's beginning to mentally drain me :(

      My hopes would be is not get served, send the request for production and they withdraw their claim from the court because they can't produce. Is this logical?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      5 weeks ago from Pennsylvania

      Xaxaxa03,

      If you are receiving letters form attorneys who want to represent you, you are definitely being sued. My best advice would be to consult with them to see what their rates are, and if you cannot afford them, then see what a one-hour, private consultation with them would be. That is worth whatever it costs.

      If you are going to go this pro se, that is, representing yourself, then answer the summons, and inform the court that you will be attending. Then, yes, send the request for production to the plaintiff (not the court). It lets them know that you are not going to just roll over and play dead. They may refuse to answer, but if they do, then make the same request of them in court.

      Still, you may have a fight on your hands, so if you are not going to use an attorney, then study hard, and prepare your strategy.

      Good luck to you,

      Brian

    • profile image

      xaxaxa03 

      5 weeks ago

      Hi,

      I hope you can respond to this rather quickly, I started receiving letters in the mail from attorneys seeking to be hired for a debt so I knew I was going to be served shortly. I went to the county search records for my area and can see a court date for a debt collector scheduled for 11/19/18 @ 9:45am. As of now, I have not been served. Should I go ahead and file the request for production form and send to both parties? I'm worried that if I wait to be served I wont have time to get the information to the courts or the attorney for the petitioner. Should I just send it to the petitioner? Maybe they would back off and drop the case. Let me know your thoughts. By the way, I live in Florida and the debt collector is CACH LLC

    • profile image

      Pam Henslee 

      6 weeks ago

      Brian Grey

      The original company was World Foremost Bank . They were bought out by Capital One Bank . I was making on time payments to them when i received a letter from Capital One Bank saying as of September 25th Capital One Bank purchased my Cabelas club Visa Account . I recieved this letter on October 19th after the transaction took place. Almost 3 weeks later . I wasnt offered an option. And since then I have been approached by 3 collection agencies. Cavalry being the 3rd collection agency. They are the one that retained a Lawyer. And they are the ones that sent a copy of the bill of sale between Capital One Bank ("Seller") and Cavalry SPV I,LLC ("Buyer") Neither of whom are the original Lenders that I signed my original contract with . I read thru my original contract to look for a clause that stated they could sell my debt to another entity if they so wished . You mentioned for me to look for this clause . It was not on any terms and condition.

      But as you said it is now in the hands of a Junk Debt Buyer ,Cavalry SPV I LLC.

      So i will follow your advice . Thank you for all the information that you have provided.

      Sincerely

      Pam Henslee

    • Hanavee profile imageAUTHOR

      Brian Gray 

      6 weeks ago from Pennsylvania

      Pam Henslee,

      When credit card companies are acquired by other companies, they are required to notify their customers that they are making this transaction and offer their cardholders the option of ending their relationship with the company, or opting to go with the new company. That being said, if you are with the original company, and you continue using the card after the transition to the new company, you have essentially entered into an agreement with the new card company. You can cease using the card, but the balance will still be owed.

      This is not the same thing as a junk debt buyer purchasing a bad debt. This is a credit card company legally acquiring another credit card company, and since they can offer the same services, it is why it is legal.

      Where all of this gets interesting is that you are being pursued by Cavalry, a junk debt buyer, so I have to assume that this account was written off by one or the other of the credit card companies, and if this is the case, then the account was purchased by a junk debt buyer, Cavalry, and in that case, I would treat it as such and use all of the information on my site to help win your case.

      Good luck to you,

      Brian

    • profile image

      Pam Henslee 

      6 weeks ago

      Brian Grey ,

      I wrote you a few months back about Worlds Foremost Bank selling all their business to Capital One Bank . I had no idea this happened til i received a letter from Capital One Bank informing me that i now owe them what i owed Worlds Foremost Bank for my Cabelas credit card . Apparently Capital one Bank bought out Worlds Foremost Bank.

      So i denied ever entering into a contract with them and of course they have sent me to a collection agency, Cavalry SPV I,LLC.

      And Cavalry has retained a lawyer Machol&Johannes LLC .

      My question is do i respond to the material that Machol sent to me after i sent them a request for Validation. They have sent copies of all statements and a copy of their bill of sale with Capital one Bank and a copy of the contract i had with Worlds Foremost Bank . Do i respond to this information or wait for a summons .

      Thank you

      Pam Henslee

    • Hanavee profile imageAUTHOR

      Brian Gray 

      6 weeks ago from Pennsylvania

      CamelJockey79,

      Congratulations on your win! Great work! You deserve to celebrate.

      A motion for substitution of counsel only means that, if granted by the court, a different attorney will replace the one who saw the case to this point in time. There is a time limit, usually thirty days, in which to file an appeal. A motion to substitute counsel is not a motion to appeal.

      Brian

    • profile image

      CamelJockey79 

      6 weeks ago

      Hi Brian... If you remember my case, I was being sued by Calvary, but I followed your advice and my case was dismissed without prejudice on July 20.

      I just randomly decided to check out my state's Casenet site to see if there were any updates, and on Sept. 10 there is a Motion for Substitute of Counsel. Does this mean Cavalry is getting ready to bring this case back up again?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      6 weeks ago from Pennsylvania

      Jamie Jones,

      Notice of motion for summary judgment usually means that you have been evading them long enough, that they served a summons, it was evaded, they tried repeatedly, issued a court date, and you may have missed that. I am not sure, but in order to file a motion for summary judgment, you have to have missed something that you needed to respond to. So, here is the first thing you need to do: Immediately, contact the clerk of the court and ask them for the form to file a motion to deny the plaintiff's request for summary judgment. Then, if you cannot afford an attorney, then at least pay for a one-hour, private consultation with one. Only a local attorney is going to be able to advise you of the legal ramifications of doing business with Lending Tree in your State, as well as the address mix up. They can also tell you what your chances are going to be with arguing against this motion for summary judgment, and they can give you the best advice on how to respond in your motion to deny.

      By the time your trial is scheduled, you should have your defense strategy in place.

      Good luck to you,

      Brian

    • profile image

      Jamie Jones 

      6 weeks ago

      I just got served a "Notice of motion for summary judgement" from a debt buyer trying to collect on a loan from 2015. The loan is mine however they have no proof such as a signature for the loan. The original loan was from lendingclub, a peer to peer lending site on 1/13/15. I know lending club was not licenced to do business in ND at that time and it even shows my address as NV not ND. At the time I had a bad gambling problem and just lost all the money. Could you in anyway help? I got the papers in the mail yesterday so I have 30 days to respond (I think). I thought since they werent licenced in ND that perhaps the loan could be thrown out? If I have no real chance of winning I guess Ill face the consequences. Just trying to find someone that can help. Thanks

    • Hanavee profile imageAUTHOR

      Brian Gray 

      6 weeks ago from Pennsylvania

      Willi Z.,

      I always recommend hiring an attorney, and especially so in your case, because of all the complexities that I see in this one. Your case is especially complicated, because of the fraudulent actions on the part of the initial perpetrators, the time share sharks. So, please strongly consider an attorney, and if you cannot afford one, then try to at least pay for a one-hour, private consultation with one.

      That being said, I am not sure how much you hurt yourself by all of the activities you engaged in with these blood suckers thus far, which is again a reason I suggest using an attorney...so many moving parts to this.

      One strategy I would use is to ask the junk debt buyer how much they paid for this bad debt, and I would then ask them to show how they are injured (scienti et volenti non fit injuria), since they knowingly and willingly bought this bad debt.

      I would also ask them to show their proof of their legal right to subrogation of this debt.

      And I would ask them to show their accounting of how they arrived at the sums they allege you owe.

      I hope you contact an attorney, because your case is special.

      Good luck,

      Brian

    • profile image

      Willi Z. 

      6 weeks ago

      Hi Brian,

      I was sued by Midland Funding LLC, assignee of Comenity Bank (Westgate Mastercard). I have a civil motion schedule for November 16 and a Trial for December 7th. They want $3,393.96 from an initial debt of $2,390 from which I made several payments until I stop making payments because I didn't receive the documents of a timeshare purchase that they said I was supposed to get within a max. of 3 weeks which after 6mos. didn't happen. The thing is when I answer to the service I admitted in part, but I remarked that I didn't know of Midland Funding LLC, until the day I was served with the lawsuit. However, doing some searching before I came across web pages stating that it was best to try to negotiate before court. So, I started a negotiation with them not knowing that I had this option that you provide here in your page. I made a couple of offers and they rejected them I was so upset knowing that I was losing everything in this case, since I was not planning to buy anything back in 2016. I went to Miami for a short trip and I was boarded by this people offering free cruse trips in exchange to assist to a hotel conference without obligation to buy anything. They really make you feel you deserve this and that and trying to avoid a purchase we said we didn't have money. Well they said they would offer us a Westgate MasterCard for the down payment and that's how my nightmare began. I feel I don't owe them, they defaulted the agreed terms and so, I was planning to go to the trial and take a represent myself. There's an bill of sale attached to the docs. I received, where it states Midland Funding LLC purchased the debt, but in an email the lawyer that I was mistakenly trying to negotiate, said they cannot lower the debs any lower than $2,500 because they don't own the debt "we are a Law Firm who represents the owner of this debt. Liars! I will send the request for production asp, can I also add there how much they pay for the debt? and based on what my case what else can I do on trying to win this case. I live in Delaware. Thank you Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      7 weeks ago from Pennsylvania

      Tammy,

      In my article, I gave an outline to follow. It is that simple. As far as a form goes, I don't know of any, but you are welcome to search online.

      Brian

    • profile image

      Tammy 

      7 weeks ago

      Where do I get the form request for production

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Anna Gilliano,

      If you scroll down, you will see the example I gave. Simply follow that. If you are looking for a template, maybe one exists somewhere on the internet, but I don't have one.

      Brian

    • profile image

      Anna Gilliano 

      2 months ago

      Can I get a template to File a Request for Production (State of NJ)

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      RobertC22,

      These scum bags wouldn't send a high-priced lawyer to court for one $800 case. They will send him there for a basket full of cases that will be heard the same day, like an assembly line. It makes it more profitable for them.

      So, yes, you use the standard 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."

      Then make them prove their case. Especially ask them to show that they have legal right of subrogation of the debt, ask them to show how they account for the amount they allege you owe (accounting is everything, verification by accounting), and ask them what they paid for this debt. They probably paid less than $10 for your $800 debt, so, how are they harmed sufficiently to justify such a huge amount for such a small investment? And study the principle of "scienti et volenti non fit injuria" so that you can properly apply it here.

      Good luck to you,

      Brian

      the plaintiff has not provided sufficient information

    • profile image

      RobertC22 

      2 months ago

      the law firm for LVNV funding has now filed a motion for Request for Admissions, which is stemming from my not answering their request for production asking me to tell on myself. There is a hearing set for this Thursday. A bit of research tells me that if I do not deny their claims, they will be considered true. I have just mailed my own request for production to the law firm as well as the courthouse. They will not be received in time for the hearing, but I will bring a copy with me to the courthouse. The questions is...what will happen at this hearing? Will I have to deny the claims, or, state that I "do not have sufficient information, etc"? Perhaps I will just have to fill out some form? Would they really send a lawyer to the courthouse on a $800 case? I think I will also have to pay some kind of court-related fee. Looking for any guidance of what to do or what not to do/say here...

      thank you

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      ProudAmerican,

      Regarding losing your job, because you are a whistleblower, I would seek out legal counsel, because firing anyone for being a whistleblower is illegal.

      If all you have as income is Social Security, that cannot be attached by any debt collector. With regard to writing letters to anyone, I would seek legal counsel for that, since junk debt buyers are ruthless and immoral, and it would not be beneath them to abuse anything written in your letter by you, especially since you are not schooled in law.

      See if you can get a one-hour, private consultation with a good attorney, and ask them what written course of action is wise. I don't advise sending letters to these morons without good legal training.

      As for any letters or phone calls from these blood suckers, tell them to stop calling you, and if they do not listen, send them a letter demanding that they cease and desist from all contact. Send the letter via certified mail, return receipt requested. They cannot legally contact you after that request is made.

      If they sue you, they cannot collect, because your assets are Social Security, so, once informed that your sole source of income is Social Security, they are wasting their time suing you, and they should know that...unless they are stupid as well as immoral.

      Brian

    • profile image

      ProudAmerican 

      2 months ago

      I lost my job after ten years because I am a whistleblower. I paid my bills as long as I could but depleted my savings. I have now been unemployed for almost two years. It’s very difficult to find a job at 66 years old and now all I live on is my Social Security. I have debt collectors threatening to take me to court. I have notified all three credit agencies of my situation and have sent every creditor letters doing the same. I would like to just write these collectors a letter and tell them that all I have to live on I’d my Social Security and I can’t pay them. Is that a good thing to do?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      CamelJockey,

      If you contact these junk debt buyers and offer to pay them, you open yourself up to having to pay them and not getting the results you want. My best advice would be to pay for a one-hour, private consultation with a lawyer who specializes in credit issues or bankruptcies and ask them what your best course should be. You can negotiate with these junk debt buyers, but if you Google the words "removing bad credit reports," you will find law firms that specialize in this. You can go it alone and do all of the necessary paperwork and research, or let a good lawyer help you streamline the process, the choice is yours. Me, personally, I would consult with an attorney to make sure that my wishes were carried out with an ironclad promise.

      Brian

    • profile image

      CamelJockey79 

      2 months ago

      Hey Brian, I have a few credit collections on my credit report that are only a few hundred dollars each. I doubt any debt collector would take me to court for these small amounts, but what would you advise on how to get these closed? I'd like to get my credit score back up.

      I know these debt collectors paid very little for the debt, so do you think I can contact them and make them an offer? For example, I have one collection for $189....more than likely they probably paid less than $20 for it. So even if I offered them $30 they'd still make a profit. Or would they ignore such a low-ball offer?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      HarrisCalvin,

      Do well, my friend, and good luck to you,

      Brian

    • profile image

      HarrisCalvin 

      2 months ago

      Thank you Brian Gray! I will do just that. Continue studying the materials and attack the plaintiff on the points you mentioned. I will be back with a follow up or more questions. You are the best

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      HarrisCalvin,

      Every one of these cases is winnable, but it depends on who makes the best argument. This is why I always tell people to hire a good attorney. However, for those who cannot afford an attorney, this site is filled with many posts from people who outlined their winning strategies, so study well. It's a free library.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      HarrisCalvin,

      The hearing is not a trial, so it is at trial that you will be allowed to introduce other things that you could not here. Also, there are judges who just don't care, or are blinded to the immorality of these junk debt buyers, because they deal with them everyday, and it has become routine to let them have their way.

      If you are going to go to court, then I would attack the plaintiff with proving that they have legal right of subrogation of the debt, verifying that they have an accurate accounting of the amount they allege you owe, and I would go into how they did the accounting. Furthermore, I would seek to have them show what they paid for this debt, and how they verify their damages to the extent that they expect you to pay a totally higher amount than they paid for the account. For example, if they claim that you owe them $1,000 , yet they only paid $10 for the bad debt, and this literally happens all the time, then how do they arrive at the conclusion that they were damaged $1,000 ? Scienti et volenti non fit injuria, which, when you study this phrase in law, means that they knowingly and willingly bought a bad debt, so how are they damaged? And how do they turn $10 into $1,000 ? Get my drift?

      Brian

      P.S. Study the excellent papers that were provided by Rodney Miner which I posted.

    • profile image

      HarrisCalvin 

      2 months ago

      3. Ownership of Debt - how do I know that I owe YOU (the law firm) the money

      Brian I want to win! it's not right or moral that these guys practice this practice. The world doesn't need it. If my case is unwinable just let me know

    • profile image

      HarrisCalvin 

      2 months ago

      Motion to dismiss was waived. The judge basically this hearing was for me to contest if I didn't or did charge the account etc

      He did not hear my arguments as he said that is more for the pretrial hearing. My arguments were pointed too the Marine v. Orlando, failed to show ownership of debt, the law-firm already having a class action suit for violation of statute of frauds and my inability to know if the debt has been previously satisfied.

      Said for my case its based off account and the collection company does not need a signed contract.

      I am confused on where to move forward too next. They claim to have the last four of my ss, address, and the last year account statements.

      My defense seems to be broken. Only thing I feel I can say is

      1. Repudiation

      2. Verification of debt

      I feel beat. He wasn't rude or anything. But just felt the judge didn't care to entertain my points made.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Jacknickols,

      If they have not yet filed suit, then they are in the process of getting their ducks in a row to do so. The first step in this process is that they have to notify you that they are pursuing this debt, and that is when you send the request for validation of the debt. If you used the form letter that I outlined here on my site, then they know you are going to fight them with everything you have, and that can send them the message that it is not worth their pursuing. These guys always want an easy win.

      If it were me, and I had sent them a request for validation, and all they sent me was insufficient evidence, I would probably send them a letter stating the standard answer:

      "Having received your response to my request for validation of the debt, I am without information or knowledge sufficient to form an opinion as to the truth or accuracy of your claim, and, based on that, I deny generally and specifically your claim."

      After you send this statement to them, via certified mail, return receipt requested, the next call will be theirs. They can either go forward and file suit, or they can keep trying to dig up more information that proves their claim, but, and this is important, in order for them to file suit, they must possess sufficient proof to win their case BEFORE they file suit, not after. They cannot file suit, then go on a fishing expedition demanding that YOU provide the information that incriminates you. THEY have to already possess that information, that legal proof, and it is quite common for these junk debt buyers to file suit, when they don't have a case, then hound you to find it for them.

      If they file suit after no more contact or demands for information, then you may want to use this against them. Tell the judge that you asked for their legal proofs via a request for validation, and you were given insufficient evidence to prove their case. Then, stand on our pat answer: 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

    • profile image

      Jacknickols 

      2 months ago

      Brian thank so much for replying. They haven’t sue me yet they just sent the paperwork I just mention in my previous post. What should be my next step after they sent just that nothing saying they bought a account number with my name or a contract from the original owner that’s how they verified this.

      Thank you.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Jacknickols,

      Scroll down and look at the materials that I posted provided by Rodney Miner. He fought the same company and won, so look at the materials that he provided and use them.

      The junk debt buyer did not provide you with sufficient proofs to win their case, but if you are afraid to go to court and argue your case, then you really need to hire an attorney. If you cannot afford one, then maybe you could pay for a one-hour, private consultation with one. In any case, you need to pull yourself together and stop doubting yourself, because only you can go in there and fight this.

      You sent them a request for validation of the debt, and they sent you insufficient information i return. At the very least, file a motion with the court and ask for a dismissal based on the fact that the plaintiff has provided insufficient proof to support their allegation. Ask the clerk of the court for the forms for filing this motion.

      Good luck to you,

      Brian

    • profile image

      Jacknickols 

      2 months ago

      I’m super stress out, is making me sick. Help please.

      I got a letter from a law firm saying I have 30 days to verify a debt. I sent a letter of verification to them and I received a bill of sale with the amount of debt and how much they bought it for, they sharpie the amount meaning they pay nothing 1 affidavit and few citi bank statements. No signed contract by be tho. I’m afraid and don’t know what to do I can’t afford a lawyer. I don’t know in what order to follow your steps if I get sue and what should I do now. Also citi sent me a document saying that they had to credit me for some and the amount it’s not reflecting on the amount Calvary is claim. I for got to mention the debt collector is Calvary Spv and the law firm is machol & Johannes. I’m in wa state .Help me Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      ConstMgr,

      Thanks for sharing this excellent link. I highly advise everyone to take a look at this very helpful information regarding taking advantage of the arbitration clauses in most credit card contracts. Excellent work. Thanks once again for sharing this.

      Brian

    • profile image

      Const Mgr 

      2 months ago

      This is from an Attorney in Arizona (my state) interesting take on using the original credit card agreement. Using the private arbitration clause contained in the agreement. By going to a private arbitration through the American Arbitration Association that will cost the Debt buyer significant money to do so.... here is the video... this would cut into their ROI on these cases.

      https://www.youtube.com/watch?v=k_duEyVT_o8&ab...

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      HarrisCalvin,

      You've done a commendable job of laying out a very strong defense. I would study each and every one of these arguments and be able to explain them to a lay person, because the judge might be one of those jerks who thinks you don't understand them. Be ready, just in case you get a judge who likes to test you. Try to be conversant in each of these items you listed, because it will really come to benefit you greatly.

      I also find it amusing that you sent them a request for production, and they did not respond, yet they dared to send a request for production to you. Ludicrous and arrogant! Nail them on that point. I assume that you sent your request via certified mail, return receipt requested. Further, some of the items that they requested of you in their request for production clearly demonstrates that they do not possess sufficient items of proof for their allegation, and such proofs are required BEFORE they file suit, not after a lazy fishing expedition in which they expect YOU to supply them. Nail them on this, as well.

      Good luck to you,

      Brian

    • profile image

      HarrisCalvin 

      2 months ago

      CORRECTION:

      5. Plaintiff sends set of interrogatories and request for ADMISSION (bank accounts, checking accounts, answer to opening account, billing statements, payments made on account, witness statements) and the last year of bills for the account

    • profile image

      HarrisCalvin 

      2 months ago

      Hello Brian,

      Wonderful website, I have researched the post you made and along with a majority of the comments.

      I have a couple questions based on my defense

      Quick Timeline:

      1. Sued

      2. Submitted Request for Production

      3. 30 days went by without a response

      4. Submitted a Motion to Dismiss with Prejudice

      Shortly afterwards received a objection response and non responsive response from plaintiff

      5. Plaintiff sends set of interrogatories and request for production (bank accounts, checking accounts, answer to opening account, billing statements, payments made on account, witness statements) and the last year of bills for the account

      6. a Day or so after this. Received a letter from the judge. Notifying the parties that a hearing is set for defendants motion to dismiss for 15 mins. Both parties must appear personally or by attorney failure to attend could result in the entry of a default judgement or dismissal.

      The hearing is in my home town and the plaintiff would have to drive 6 hours.

      My defense points

      1. Fair Debt Collection Practices Act - Abusive Practices, Invasion of privacy, no collection of signed contract has been sustained.

      2. Repudiation - Plaintiff is not an assignee for the purported agreement. No proof to say the contrary.

      3. Federal Trade Commission 809 - Validation of debts - defendant would require the claim to show the items sold and the dates of sales or service.

      4. Statute of Frauds 725.01 - Plaintiff must come forth with a signed contract to prove their claim.

      6. 26 U.S. Code 166 Bad Debts - Inability to correctly know if the debts have been previously satisfied. Companies are allowed deductions of any debts which become worthless within a taxable year.

      7. Federal Rules of Civil Procedure - Rule 8b5 - Defendant is without information or knowledge to form an opinion to the truth or accuracy of the Plaintiff's claim.

      8. 15 U.S code 1692f1-2 - Unfair practices - Nor proof or ownership of said debt has been verified or exhibited. Also found a recent (within the last year) class action lawsuit against the plaintiff for this same violation of U.S. code 1692

      9. Federal Trade Commission 808 Unfair Practices - taking or threathening action of dispossession or disablement of property when there is no present right to possession of the property .

      10. Marine v. Orlando - Interrogatories is apart of discovery process which is merely an aid and not to be used form issues in pleadings. Burden of proof is placed on the plaintiff not the defendant.

      11. Marine v. Orlando - Defendant is entitled to know the dates of transactions, amounts in dollars, and items purchased to intelligently determine what he can admit and items he can contest.

      12. Scienti et Volenti non fit injuria - an injury is not done to one who knows and wills it.

      how much did you the plaintiff pay for this said debt?

      Is there anything else I should be focused on for my defense?

    • profile image

      HarrisCalvin 

      2 months ago

      comment test

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Daniel Horowitz 1,

      When you stand before any judge, you are given the opportunity to make your argument for why you should be awarded the judgment you seek. That is the simple form of the answer. The complexities begin once we start talking about what level of court, what the situation being defended, and the various strategies that are available. Arguing in court is a chess game, and each strategy has its strengths and weaknesses. So, imagine that you are trying to convince some friend of yours that you deserve to win. What do you say? And that is what you do in court. You listen, you pay attention to the offense (the plaintiff), and you look for ways to poke holes in their arguments, all while lining up your aces and playing out the best strengths in your arguments. Go attend a court session as soon as possible, and observe the formalities. That will tell you more than I can here.

      Good luck to you,

      Brian

      P.S. You address all judges as "Your Honor."

    • profile image

      Daniel Horowitz 1 

      2 months ago

      Mr. Gray,

      Thank you very much for the article. I plan to use this defense in my Bench Trial mid October. I had a question though, as I am a bit apprehensive when thinking of representing myself in court for the first time. I would like to know if you could tell me a bit of what to expect when I go in there, how I should address the judge in the beginning, how do I explain that I will be representing myself and when do I start stating my defenses as you have listed.

      Should I use all of them (the defenses you've stated), one after the other, or should I treat them like a hand of cards and use them when and if they apply? And they all apply in my case, as I'm sure they do in most if not all. I would like to make an attempt to sound like I know what I'm talking about and not embarrass myself, so anything you could add or answer, would be greatly appreciated.

      Thank you again very much for the help, this article has given me hope.

      Daniel

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Joshua A Pester,

      In some courts, this may work, in others, not. The reason being is that some States have made it easier for junk debt buyers to move forward without a signed, original contract. You have to hit them with everything.

      Brian

    • profile image

      Joshua S Pester 

      2 months ago

      Since the collection company doesn't have the proper paperwork like a contractual agreement, can't you move for a dismissal before it even gets to trial? Just a thought I have and I'm considering giving it a try after I've given them say 45 days to produce a contract from the request for production. Thank you again for your article and help.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Joshua S Pester,

      Yes, the laws of the Fair Debt Collection Practices Act are universal, and the legal information in my article is applicable in all fifty states. What Cavalry has provided to you is insufficient to prove their case, but you need to study my article to see why. Furthermore, you need to scroll down to the materials that I posted from Rodney Miner's case in which he fought against Cavalry and won. He supplied some excellent reference materials. Take advantage of them, and put together a strong defense.

      Good luck to you,

      Brian

    • profile image

      Joshua S Pester 

      2 months ago

      Hello Brian,

      I would like to thank you for your article, I was researching bankruptcy when I came across it. It gave me hope!!! I live in Florida and I have already done the Request for Production. My court date is set for January. In the original summons all there is a bill of sale from Citibank to Cavalry, 2 or 3 old credit card bills, and a computer print out from Citibank with balance and account number. I know the laws are different state to state, and from my understanding Florida doesn't have a lot of consumer debt laws in favor of the debtor. Will the defense you have laid out in your article work in Florida and if so is there a key point in your defense that I should focus on for my state? Thank You again Brian.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 months ago from Pennsylvania

      Moby612,

      You may not have records, but whether you lived at any address is not in and of itself sufficient proof for them to win their case. They need to show so much more, as anyone reading my article, and all of the extra items that I have posted, will see.

      Don't forget to request that they show legal right of subrogation of the debt, and I would go so far as to ask them how much they paid for this alleged debt. For example, if they bought a $1,000 debt for $5, literally, then how do they justify demanding that you pay them $1,000 ? Remember the phrase, "Scienti et volenti non fit injuria." This means, as you will recall, that the junk debt buyer is not injured when they knowingly and willingly purchase a bad debt. So, how is the junk debt buyer injured? How is a $5 purchase worth $1,000 ? Get my drift?

      Expose their immoral and greedy intentions, and go after all of the points in my article.

      Good luck to you,

      Brian

    • profile image

      Moby612 

      3 months ago

      Hi again Brian,

      As im answering the interrogatories issued to me, the final demand is to:

      Attach any documentation evidencing defendant's mailing address between 10/31/14 and 5/23/16, which should include, but is not limited to copies of energy or water bills, telephone bills, leases and or deeds/mortgages and drivers licenses. If said documentation is not in the possession of the defendant, please list each address at which the defendant received mail during the time period requested.

      Now I am aware that I am not required to keep records and therefore do not have to send them any evidence. But as for the final part of the demand requesting my mailing address, do I need to provide this to them? I feel as if I answer this, it gives them the slightest bit of evidence for them to say that the mailing address matches the one assigned to the debt and therefore, I am liable.

      How should I proceed with this answer? Thank you in advance

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 months ago from Pennsylvania

      Brice Ruppert,

      I have not read this bill, however, nothing in this bill will be able to nullify what is written in such laws or actions such as the fair Debt Collection Practices Act. I would have to read this new law to see how it makes anything easier for debt collectors, but my best advice is to study the information my article gives you, and see if the new law takes anything away. You still have a lot of laws on your side.

      Here is a good link explaining this new law:

      https://www.insidearm.com/news/00041902-wisconsin-...

      From reading this article, I can only see that it takes away the requirement of the request for production that the debt collector must show every transaction in the chain of purchases made with the credit card. You still have lots of legal tools at your disposal as described in my article and related materials that I have posted.

      Brian

    • profile image

      brice ruppert 

      3 months ago

      Hello I have a debt collector suing me and was doing some research and found your article. Are you familiar with the newer bill passed in mar for Wisconsin that makes it easier for debt collectors. AB 117 debt collector friendly bill. Any idea if your article will help me win or other routes I can take to win. Thanks

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 months ago from Pennsylvania

      DarwinAndujar,

      I wish I knew where you could retrieve one, but I don't. Sorry.

      Brian

    • profile image

      DarwinAndujar 

      3 months ago

      Hello Brian. Where can I retrieve an editable copy of the reproduction letter? Thanks

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 months ago from Pennsylvania

      Yogurt,

      I am not sure what you are asking.

      Brian

    • profile image

      Yogurt 

      3 months ago

      Is it possible for a credit card company or my lawyer to take a credit card company back to court after a judgement in my favor in small claims court? I have a check in front of me after winning, but realize there are many people who are suing for more because of the situation of them calling me at 7 a.m. while my daughter had surgery through a local hospital. They were horrible.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 months ago from Pennsylvania

      Moby612,

      I make them work for it. If they ask me to provide documents or records, I simply don't have them, because I never saw any need to save them, and there is no law against not keeping records.

      If they ask me to agree to their findings, I simply repeat the standard 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.

      The burden of proof rests upon the plaintiff. They make the allegation, they have to prove it, not you.

      Brian

    • profile image

      Moby612 

      3 months ago

      Thanks Brian.

      Exactly my thoughts when i read those! So what would be the proper response to these questions/requests? I’m pretty confident they have ZERO proof against me since they have yet to send me even the simplest form of proof other than the account number and my SSN.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 months ago from Pennsylvania

      Moby12,

      Yes, they want you to do their homework for them. My rule of thumb is this: if I am supposed to give answers that require that I kept records, they are out of luck. I am not required to keep any records. On the other hand, they are required to have records to prove their allegations, since the burden of proof always rests with the plaintiff.

      You don't need to come up with copies of utility bills, etc. Who keeps these? I think they are fishing for 90 days, hoping that you are going to prove their case. They have to prove it, not you. They were the ones who made allegations.

      Brian

    • profile image

      Moby12 

      3 months ago

      Hi Brian,

      I just received 2 letters from the attorney of Midland Funding after filing my answer to their suit last week. One letter is a CC: to me of a letter sent to the county clerk by the attorney, "Plaintiff requests that this matter be adjourned by reason of outstanding discovery. Pursuant to R. 6:4-5, Plaintiff is entitled to 90 days of discovery commencing with service of the Defendant's answer. My office was served with the answer on August 17, 2018. I therefore calculate the discovery end date as November 15, 2018. Discovery was served upon the Defendant on August 22, 2018, and to date, same has not been answered by Defendant."

      The second letter I received from them was interrogatories to be answered.

      1. Set forth with specificity all facts in support of each defense and/or claim which the defendant has in the above-entitled matter including dates, places, names and addresses of persons present or involved in any action and/or conversations.

      2. Attach copies of all writings, documents, or any other records which relate to said account or in any way support any defenses or claims, including but not limited to, correspondence, contracts, notices, monthly statements, applications and any letters sent to or received in connection with the subject account.

      3. Attach any documentation evidencing defendant's mailing address between 10/31/2014 to 5/23/2016, which should include, but is not limited to, copies of energy or water bills, telephone bills, leases and/or deed/mortgages and drivers licenses. If said documentation is not in the possession of defendant, please list each adddress at which the defendant received mail during the time period requested.

      To me, this sounds like they're looking for more information to use against me as they don't have much since they haven't referenced anything directly in the interrogatories. I am sending out my request for production tomorrow. But as for these questions, I'm not really sure what they're asking since they're asking for very broad questions and information. So my question is how do I proceed with this?

      Thanks in advance

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 months ago from Pennsylvania

      Stepehn,

      Entries on credit reporting agencies from original creditors cannot be removed unless they are fraudulent, or contested and won in court.

      As for Portfolio Recovery Associates, they are junk debt buyers, and any action they take will require your fighting them in court. Winning or losing against them does not change the timeline reported by the original creditor to credit reporting agencies.

      Brian

    • profile image

      Stephen 

      3 months ago

      Hi Brian,

      I have a debt to portfolio recovery associates for $1700 from an old CITI card. They will not remove the tradeline even if paid in full and will not resell the debt to another agency (so it seems I'm stuck with it until it ages, or they sue me, and I use your INCREDIBLE guide to defend myself)

      Is there anyway I can induce a lawsuit or sue them first to get this started? I'd like to buy a house at some point soon.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 months ago from Pennsylvania

      Claver,

      My best advice would be to see an attorney. If you have started making payments to them, you have entered into an agreement. So, you really need the best counsel possible, and that would be an attorney who specializes in these types of cases.

      Brian

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