You Can Beat Credit Card Debt Collectors

Updated on February 14, 2019
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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 lawyer who is representing the collection company. Make sure that you send the letter to the lawyer for the collection company via certified mail, return receipt requested. By sending this to the lawyer for 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 the original agreement with your signature. (Note: in some areas, an original signed contract is not required. Also, a verbal agreement made over the phone will obviate this requirement, as well.) You have also requested that they produce all of the proofs 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.

Why? 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 often, not even the complete 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 from your credit card company, and this is required by law. It is called the "attachment rule." 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

I am often asked where one can find a good attorney, and I highly recommend going to www.nolo.com and chatting with one of their attorneys. I consider them the best resource for this.

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?

First, a note about "Subrogation." This is possibly the least-known term in the practice of law. To quote one prominent subrogation attorney: "I have become comfortable with the idea that very few people have any idea what subrogation means, including many lawyers and judges. The reality is that few people have ever heard of the word, aside, of course, from law students who hear it during one session of their contracts class."

You will hear some uneducated people say that subrogation only refers to insurance claims, which I hope will be proven abundantly false once you have read this section of my article. The legal defenses available by studying the laws of subrogation are very valuable, even if they are complicated at first to grasp. So, I will try to break this all down for you.

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.

For those who erroneously claim that subrogation only applies to insurance claims, let's first look at Black's Law Dictionary 1427 (6th ed. 1990):

"Subrogation is '[t]he substitution of one person in the place of another with reference to a lawful claim . . . so that he who is substituted succeeds to the rights of the other in relation to the . . . claim, and its rights, remedies, or securities.'"

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. Think about this for a moment. When we ask a junk debt buyer to show that he has legal right of subrogation, if the junk debt buyer says that he owns the debt, he is saying that he paid the original creditor the entire amount of the loss, did so by compulsion, and is therefore now entitled to be reimbursed the same amount. But, he did NOT pay the original creditor the full amount of the loss. He paid pennies on the dollar for the account. How, then, does the junk debt buyer justify the amount he claims? Keep thinking about that.

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 subrogation 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.

Remember these:

ELEMENTS OF SUBROGATION

(1) Subrogee has paid obligation of the subrogor.

(2) The subrogee did not “volunteer” to pay the debt of the subrogor.

(3) The subrogee is secondarily, not primarily, liable for the obligation.

(4) The subrogor will not suffer injustice if subrogation is allowed (Doctrine of Equity).

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!

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.

Can a Junk Debt Buyer Report You to a Credit Reporting Agency?

The answer is, "NO!" Why not? Because, the junk debt buyer was never a party to the original contract between you and your original creditor. For proof of this application, go to the US law encyclopedia, American Jurisprudence, 73 Am Jur 2d. Sections 90-93, and there, you will find that it states that the right of subrogation does not exist for a stranger to the transaction. In other words, a junk debt buyer, who is a "stranger to your original contract," cannot subrogate onto your original contract. They were not party to your original contract, nor did they have any interest to protect, so they cannot then try to claim that they have the status of successor in rights and interests. Thus, if they place your debt with a credit reporting agency, and they have not won ownership by presenting and winning their case against you in court, they have broken the law. Here just one of the reasons why:

Section 604 of the Fair Credit reporting Act specifically does not permit third-party collectors to "inquire" on your credit reports. It's called Permissible Purpose, which is what they would need in order to add or subtract anything with regard to your credit report.

You can read the entire section by going here:

https://www.consumer.ftc.gov/articles/pdf-0111-fair-credit-reporting-act.pdf

What you will find is that nowhere does the law give a third party the right to your credit report. You will especially enjoy these words found therein:

§ 604. Permissible purposes of consumer report
a) In general. Subject to subsection (c), any consumer reporting agency may furnish a consumer report under the following circumstances and no other:

What follows is a description of your protections, and it clearly gives the junk debt buyer notice that, as a third party, a stranger to your original contract, they may not touch your credit report. They are a third party, a stranger to your original contract, and they cannot subrogate themselves onto that original contract. In order for them to affect your credit report, they have to enter into a contact with you, the consumer.

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.

Why You Should Fight It In Court

In a 2015 Consent Order against Portfolio Recovery Associates by the Consumer Financial Protection Bureau, these two items should drive home the point that you simply do not want to run away and hide, like so many people do. You want to get your case together, organize your defense, and appear in court. I have highlighted several key elements in this excerpt that should show what is common practice with debt collectors. In this excerpt from that consent order, "PRA" stands for Portfolio Recovery Associates.

27. "Prior to PRA purchasing a Debt Portfolio, PRA typically receives an electronic file ("Sale File"), from the Seller that includes information about the Consumers and the Debts, including, but not limited to, name, address, social security number, as well as the current balance, contract interest rate, and dates of origination, last payment, and charge-off.

28. PRA is aware that significant inaccuracies may exist in the Sale Files it purchases, including that some Debts' balances were not reduced by a consumer's subsequent payments. For instance, when a PRA senior manager raised a concern about the poor quality of sellers' balance information and asked how PRA can know actual balances owed if it does not receive information on post charge-off payments, PRA's Vice President for Collections responded, "We don't. 90% of our cases are default judgments. We show the judge the math and if no one disputes we get our judgment. Debtor has the right to defend and prove us wrong. If they show payments we've missed we amend the complaint."

"90% of our cases are default judgments." That means that these debt collectors did not even have to put up a fight. Consider the fact that Portfolio Recovery Associates purchased more 4.7 billion dollars in debts in 2013 alone,and you can see why they keep on doing this to people.

I also repeatedly advise people to demand an accounting to show how the debt collector arrived at the alleged total that they are demanding. Here, from that same consent order, is an example of why I repeatedly advise this:

"For example, a 2009 purchase agreement with one large bank explicitly stated that account balances are "approximate" and "may not reflect credits for payments made by or on behalf of the [consumer] prior to the cut-off date."

Read These Two Very Important Consent Orders

I cannot emphasize how important it is to thoroughly study these two consent orders that were ordered against two of the largest junk debt buyers by the Consumer Financial Protection Bureau:

The Encore consent order can be found at:http://files.consumerfinance.gov/f/201509_cfpb_consent-order-encore-capital-group.pdf

The Portfolio Recovery Associates consent order can be found at:http://files.consumerfinance.gov/f/201509_cfpb_consent-order-portfolio-recovery-associates-llc.pdf

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.

This article is accurate and true to the best of the author’s knowledge. Content is for informational or entertainment purposes only and does not substitute for personal counsel or professional advice in business, financial, legal, or technical matters.

Questions & Answers

  • Portfolio Recovery's attorney came back with this: Objection: This request is irrelevant and not likely to lead to any admissible evidence related to the Account Stated action. She refers to Whittington v. Stanton 53 Fla 311. The account stated is based on "the agreement of the parties to pay the amount due upon the account, and not any written instrument". What should I do?

    I am not sure which request you sent them, but their response is a standard ploy by lawyers when they know that you are representing yourself. You have to show the court why your request IS relevant.

  • Why would a plaintiff file in district court rather than magisterial?

    It depends on the amount of money they are pursuing. Amounts under $12,000 can go before a magisterial court, amounts over that must go to the higher courts. If the amount they are pursuing you for is under that amount, then check with a local attorney to see if there is some rule in your county jurisdiction that allows lower amount suits to be pursued at the district court level. However, there are locales where the magisterial court is the district court, so check to see what it is that you are dealing with. In one, you can argue your own case, in the other, you most definitely cannot.

  • I asked for production and they sent six months of credit card statements, is that adequate on their part? They did not send the original contract, signed transactions etc.

    What are those six months? Are they actual proof of the last six months that this card was active, or are they a random six months? Where is their accounting for any payments that were made to this account? Where is their copy of the original signed agreement between you and the original creditor, and where is their proof of any modification to your original contract, which modification would permit them to service the account? How are they capable of servicing that account, if they are not a credit lending company?

    Also, where is their proof of legal right of subrogation of the debt? How much did they pay for this account? How do they justify how much they are trying to charge for it? For example, if they claim that you owe them $ 1,000, they probably paid about $5 for it, so how do they justify the amount they are charging you in the suit? How are they damaged to that amount? Research "scienti et volenti non fit injuria," and know what it means.

    And remember, the legal right of subrogation of the debt means that the junk debt buyer should be reimbursing the original creditor for the total amount that they are claiming. Are they?

  • I am being sued locally by Calvary who purchased my Citibank (home depot) debt. My question is this: when I respond, do I respond differently, since they are not the original creditor? Is it okay to ask for additional information, since their Exhibit One sales information is marked through and unreadable? I know that is because they bought multiple accounts, but I am trying to figure out the best approach. Any guidance is greatly appreciated.

    The typical response is outlined in my article and the accompanying materials that I have posted. Answer the summons indicating that you will appear in court, and do so before the expiration of the time limits. Send the plaintiff a request for production, even though they may choose not to comply. You can use that as leverage later in court, but it basically lets the plaintiff know that you are not going to run away. Instead, you are going to put up a fierce fight, and you want them to know that.

    Yes, you may ask them for additional material, which is why I say to send them a request for production. And you are right, they bought thousands of accounts and have insufficient documentation to win their cases if you do your homework.

  • I was sent s summons from Zwicker & Associates for a debt owed to Plaintiff Discover Bank. What are my options and how do I go about filing a written response?

    Here is a very good link to information about Zwicker:

    https://www.bills.com/debt/zwicker-associates

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    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 minutes ago from Pennsylvania

      Abbie Santana,

      I am a bit puzzled as to what these items were that you refer to as "proof of admissions." Please give me some better details as to what they were, what was the wording used. It doesn't sound like interrogatories, so I am a bit puzzled.

      As for admitting anything to the plaintiff without a trial, there is no compulsion to do so. Our standard answer 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." I hope this is what you replied to them.

      Portfolio Recovery Associates is a junk debt buyer, the biggest, and they were sued by the Consumer Financial Protection Bureau for a lot of their illegal activities. Study the consent decree here:

      http://files.consumerfinance.gov/f/201509_cfpb_con...

      It is well worth your time to see all of the illegal activities they engaged in, and I am not so sure that they have stopped.

      I always say, if you can afford an attorney, hire one, but if you cannot, then at least try to pay for a one-hour, private consultation with one, and make it one who has had success in suing these blood suckers. If you cannot afford one, then take some time to go watch some court sessions so that you are somewhat familiar with how things operate and to also help you get over any jitters you might have about being in there.

      If you are going to defend yourself, make sure that you demand that the plaintiff show a paper trail all the way back to the original creditor showing an accurate accounting of the amount they allege you owe. They need an affidavit from the original creditor showing that the amount they allege you owe is verified by the original creditor. They won't have it, I'm pretty sure.

      And I would ask them to show how they own the debt. Also, if they claim to own it, what did they pay for it? If it is $1,400 , and they probably paid $15 for it, how do they justify requiring you to pay them $1,400? Did they pay the original creditor the full amount, thus allowing them to say that they have become the subrogee? Are they subrogated to the debt? I would demand to know these things, because they were not partners in the original contract, so how do they come now demanding to be satisfied? How are they injured? Scienti et volenti non fit injuria...they knowingly and willingly bought a bad debt: how are they injured? What are their damages?

      You have to study these points until you understand them, then study why they are legal defenses, and finally, be ready to use them.

      Good luck to you,

      Brian

    • profile image

      Abbie Santana 

      11 hours ago

      Good morning Brian! So my update on my case is that they have pushed it out again to do the hearing in April. The judge said it was because the docket was so full he wouldn't have time to hear everyone out, so he only took the cases where both parties were represented by an attorney. Yesterday I received a letter from the plaintiff's attorney stating that I had 10 days to return the proof of admissions they have requested since they sent me what I had asked for (which they didn't and I couldn't even open to the word doc on the CD they gave me). Since I am worried about having this long drawn out process I looked into some lawyers, even though I am reluctant to pay when the amount PRA is suing me for is so minimal ($1,400). Both attorneys turned me away, with an email saying at this time they would not be able to represent my case. My question for you is, is it worth it to get a lawyer to finish this? Or by following your outline provided above I should be fine representing myself in court. My second question is, does the plaintiffs 10-day "threat" hold any weight? Do I need to respond back to their proof of admissions to avoid a default judgment or is that just a scare tactic to have me admit and lose before we even step back in the courtroom?

      Thank you for your time on this.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 days ago from Pennsylvania

      Vicr,

      Because most cases involving subrogation originate in insurance claims, and since the subject is so unheard of that the few lawyers qualified to represent subrogation end up having to explain to the judges what subrogation is, it is no wonder that your judge thinks that the Midland representative is correct. After all, the plaintiff is a lawyer, and who are you to challenge them? But, subrogation can be used in credit card cases.

      To quote one prominent law professor:

      "Today, subrogation is defined as the substitution of one person in the place of another with reference to a lawful claim or right. Although subrogation is usually recognized in insurance settings, the right of subrogation can arise in many other contexts wherein one party pays a debt lawfully owed by another, including mortgage and real estate settings, suretyships, and other areas. The party whose debt has been paid (usually an insured), is known as the “subrogor”, while the party who has paid the debt (usually the insurance company), is known as the “subrogee”. The subrogee steps into the shoes of the subrogor and acquires all legal rights the subrogee has with regard to the subject of the claim. Subrogation has wide-reaching ramifications and benefits to society, the American economy, and the system of civil jurisprudence."

      ELEMENTS OF SUBROGATION

      (1) Subrogee has paid obligation of the subrogor.

      (2) The subrogee did not “volunteer” to pay the debt of the subrogor.

      (3) The subrogee is secondarily, not primarily, liable for the obligation.

      (4) The subrogor will not suffer injustice if subrogation is allowed (Doctrine of Equity).

      Thus, when I suggest that a defendant demand that the plaintiff show that they have legal right of subrogation of this debt, the plaintiff needs to show that they paid the original creditor full face value of the debt. They also need to show that they are not a "volunteer" to the debt, but are compelled to pay it by some obligation to the original creditor, as in, they are paying the original creditor in full.

      Further, I would request that the plaintiff show the original contract signed by you, which contract must show that the interest they claim was permitted by that contract, as well as any other fees they allege you owe. Where is the original contract, and where in it does it have a clause allowing them to join?

      Further, where is their accounting of the amounts they allege you owe? They are required to show an accurate accounting all the way back to the original creditor, even if the account has been sold multiple times. They are required by law to show a signed statement from the original creditor attesting to the accuracy of their claims.

      Midland was successfully sued a few years ago by the Consumer Financial Protection Bureau, and among the findings, this stands out:

      "Midland stated incorrect balances, interest rates, and payment due dates in attempting to collect debts from consumers. Midland purchased large portfolios of consumer debt with balances that sellers claimed were “approximate” or that otherwise did not reflect the correct amount owed by the consumer. Sellers also warned the Midland that some of the debts they were buying may not have the most recent consumer payments deducted from the balance. Some sellers also represented that documents were not available for some of the accounts. Midland continued purchasing from these sellers and then collecting on that debt without first conducting any investigation to determine whether the debts were accurate and enforceable."

      To view the entire consent decree, which I highly recommend studying, use this link:

      https://files.consumerfinance.gov/f/201509_cfpb_co...

      Good luck to you,

      Brian

    • profile image

      vicr 

      3 days ago

      Brian, I have been sued for a credit card account by Midland Funding.

      I listed the defenses you advised in your article. We had a hearing andf Midland‘s lawyer objected to the defenses. She said they provided proof I used the account and that they own it. They have an affidavit from Synchrony that has my name and says my account was sold to them.

      I told the judge that Midland has not proven that they had right of subrogation. The lawyer for Midland said that this is not an insurance debt.

      The judge asked Midland some questions and then he gave me 30 days to prove that this about insurance. What do I do?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 days ago from Pennsylvania

      Na Wao,

      These cases don't go to Federal courts, they are held in magisterial courts. However, any time a debt collector sends you a notice that they intend to collect a debt, they have to notify you that you have 30 days in which to dispute the debt. Keep in mind, even if you do not dispute the debt, they still have to prove in court that you owe the debt. Your failure to dispute is not considered an admission. The burden of proof ALWAYS rests upon the plaintiff, a cardinal rule of law.

      Once you receive their letter, you should immediately send them a request for verification of the debt. Send it certified mail, return receipt requested. This way you have proof that you sent them the required letter requesting verification. Once they receive the letter from you, they have to cease all collection efforts until they have verified the debt. They cannot file a suit during this time. If they file suit without having verified the debt, you can file a motion to dismiss with prejudice.

      Brian

    • profile image

      Na Wao 

      4 days ago

      Please I need help understanding this and to see if I have a ground to sue. First, are all initial letter sent by the debt collectors not supposed to have this notice required by Federal Law? Which is: Unless, within 30 days after receipt of this letter you dispute the validity of the debt, or any portion thereof, we will assume that the debt is valid.

      I received a letter for the first time without that notice above as required by federal law telling me of my right to dispute it. The letter only state this is letter from a debt collector and any information will be used for that purpose and giving me a 50%. Do I have a ground based on that slight omission to get a case dismiss in federal court?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      5 days ago from Pennsylvania

      Wash86,

      It is true that many accounts nowadays are entered into with a verbal, over-the-phone contract, but, the accounting still has to be verified. The plaintiff has to show that the amounts alleged owed can be verified back to the original creditor with affidavits from the original creditor that the amounts are completely accurate.

      Sometimes, if the amount is large enough, even though it has been charged off, the original creditor may assign it to a collection company, in which case, fighting it is difficult. If the original creditor is in the picture, some people take the nuclear option and declare bankruptcy, which wipes out the debt permanently, although that does leave a mark on a person's credit report for ten years.

      In your case, one long shot would be to demand proof from the plaintiff (Rausch Sturm) that they have legal right of subrogation of the debt.

      Having said all of that, I am not 100% convinced that Rausch Sturm is not a junk debt buyer, so here is a link regarding Rausch Sturm that you might find interesting:

      https://www.lemberglaw.com/rausch-sturm-collection...

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      5 days ago from Pennsylvania

      Emchelly,

      Even if they are not required to answer, use their refusal to answer against them. Show that the reason they have not answered is because they do not have sufficient proofs on hand to have filed suit in the first place. In order to file suit, the plaintiff must have sufficient proofs on hand to verify their claim, without which they do not have legal standing to be in court.

      And even if they do not supply them in advance, demand these items in any hearing and in any trial. They are required by law under the Fair Debt Collection Practices Act to show a full and accurate accounting of how they arrived at the amounts they allege you owe, and they must show validation of that accounting going all the way back to the original creditor with proofs from that creditor that the accounting is absolutely correct.

      Brian

    • profile image

      Wash86 

      6 days ago

      Well today, my validation request from Attorney representing Capital One showed up with a thick packet of all these statements from a business card account that is charged off.

      Capital One is still reporting to CRA.

      Last month called Capital One through their automated phone system, entered account number and call was routed to the same attorney Rausch Sturm who sent this packet full of 1 full years of account statements.

      Funny all of these monthly statements and nothing with an original contract or anything with a signature

      on it.

      Have heard recent talk that nowdays cards are applied for online and consumer aren’t signing contracts and maybe that isn’t enough cause for dismissal.

      Please let me know what you think Brian.

    • profile image

      Emchelly 

      6 days ago

      Sending the company suing me a validation of debt request. I did send the document you provided for the notice of production. What if they don't answer the validation of debt by the time we have mediation again?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      9 days ago from Pennsylvania

      Emchelly,

      Actually, you only need to send the request to the plaintiff, not he court. In many States, this request is not going to be honored, because of the court system it is in. The judge may not grant a dismissal based on a request for production that is not considered a requirement for response in the first place.

      What I would do is send the plaintiff a request for validation of the debt, ask them to show how they accounted for the amount they allege that you owe, and show proofs from the original creditor that the plaintiff not only is the legal owner of the alleged debt, but that the original creditor has verified the accuracy of all items related to this debt, including, but not limited to, the accounting of the amounts alleged owing.

      Ask the plaintiff to show how the accounting was verified. Ask them to show the original contract with either your signature, or the original creditor verifying all the terms of that original contract and proof that you agreed to them.

      Those are just a few of the things that I would do.

      Brian

    • profile image

      Emchelly 

      10 days ago

      I sent the lawyer representing the junk debt buyer a notice of production one week prior to our mediation 11/17/18 certified mail. I also sent a copy to the judge. At mediation the lawyer (contracted local lawyer) asked to continue until 2/25/19. I still have not received anything from either lawyer. What are my next steps. Can I get this dismissed?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      11 days ago from Pennsylvania

      Na Wao,

      My best advice is to follow the wealth of information on this subject at this link:

      https://www.nolo.com/legal-encyclopedia/remedies-f...

      Good luck to you,

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      11 days ago from Pennsylvania

      DaveH18,

      Good luck to you. I have a feeling you know what to do.

      Brian

    • profile image

      Na Wao 

      11 days ago

      Hello Brian,

      I filed a small claim against Midland Credit Management for their refusal to delete my account which they have since responded it is reporting correctly. But they never put dispute on my consumer file within 30days. No that i'm filling a small claim of $4,000. What should I mostly consider and use as my strength as I am now the plaintiff.

    • profile image

      DaveH18 

      11 days ago

      Thank you Brian for all of your help! You're a great man for what you do for all the little people out there! I have court on the 13th with Zwicker and Associates. They already dismissed one of my cards but are still suing me on the second. Even though I handled both accounts the same way, lol. In their recent filing with the court they admit that they have nothing "material" but they're still proceeding ahead anyway. I'll let you know how this plays out and include any helpful tidbits that I learn.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      11 days ago from Pennsylvania

      DaveH18,

      For whatever reason they filed in the wrong county, I would not look a gift horse in the mouth. It is a bit bizarre, because they are the ones who should be filing the motion with the court, not you. Nevertheless, I would take the letter to the clerk of the court and see what they think. If it is accepted, and the case is dismissed, you hit a home run.

      Brian

    • profile image

      DaveH18 

      12 days ago

      Hello Brian, I received correspondence from an attorneys office. Enclosed is a Plaintiffs Motion to Dismiss Without Prejudice and Order of Dismissal for filing with the court. They want me to present this to the judge for his signature and entry with the court.

      I am confused by this because they never actually sued me? Plus the courthouse listed on the letter is in another county, different than mine? I pointed out to the law firm that did not possess the genuine contract and this is the first that I have heard from them in months.

      Do you think I should push the envelop and request that they dismiss with prejudice?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      13 days ago from Pennsylvania

      JoeRon,

      In most cases, the person you are speaking to on the phone is a call center employee making minimum wage and reading off of a script. As for when they will sue you, that is anyone's guess. There is no way to tell until they actually go through with it.

      Hopefully they file just as you are beginning your bankruptcy, because you could then include it. Speak to your attorney about this, because timing is everything.

      Brian

    • profile image

      JoeRon 

      13 days ago

      Brian, Thanks for the response, here's a little more detail. I haven't received a written response back from them yet. As for as phone conversations, I've only had one or two, and those were just asking for verification. At no point have I admitted to the debt or asked or wrote them to stop calling. Since I've last wrote you, I've called them and they said my account is in their legal department now and had to be transferred over, but the rep said there was no lawsuit pending as of that time. I assume if I'm in their legal dept., its only a matter of time before they start the process of working up a lawsuit. Have you ever heard of this step in their process? I'm looking to file Ch. 7 this year anyway, but can't right now due to having an open lawsuit from an auto accident which I was not at fault. My lawyer thinks we will have the case closed by this fall. My goal is to try to keep a Portfolio lawsuit at bay until my auto case is closed and can file for 7. My state allows for Garnishments & seizure of Bank accounts and I can't have that happen. Thanks again, this site has been the most helpful so far!

    • Hanavee profile imageAUTHOR

      Brian Gray 

      13 days ago from Pennsylvania

      JoeRon,

      In order for your letter to become a contract, Portfolio would have to agree to its terms. If you receive anything from them offering to agree to these terms, don't sign it.

      The fact that the phone calls have stopped is impossible to interpret without knowing what was said between you and them during those phone calls. If you gave them no information, did not agree that the debt was yours, asked them to stop calling, then they may come after you later with a suit. If you agreed to anything over the phone, and they notified you that they were recording the conversations, then only they know what they want to do with that information.

      I would simply follow this line of action: refuse to take any more of their phone calls, tell them to cease and desist from calling, get their address and mail them the same request, mail it via certified mail, return receipt requested, then prepare your strategy for when they finally sue, which they most likely will do.

      You can beat Portfolio. They were sued by the Consumer Financial Protection Bureau, and there is tons of vital information in that consent decree. Here is the link:

      http://files.consumerfinance.gov/f/201509_cfpb_con...

      Good luck to you,

      Brian

    • profile image

      JoeRon 

      2 weeks ago

      Before reading this, I mailed a letter to Portfolio Recovery stating I can pay $10 a month. Recently the phone call have stopped. Does this mean they are about to sue me, and did the letter incriminate me? thanks

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      Noelle5151,

      Yes, you can send those to them. It is often the case that junk debt buyers don't clean up their messes once they lose, so, in many cases, defendants have to do it themselves....sad to say.

      Brian

    • profile image

      noelle5151 

      2 weeks ago

      What would be the next step after winning a judgement against LVNV funding? I would like this off my credit report. One is reporting "closed" and the other is reporting negative. Can I send the court papers to the credit agencies?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      Curious1,

      How did Midland get a default judgment against you? Did you run and hide when they were trying to serve you? Or, were you not properly served and had no idea that you were being sued?

      If you were improperly served, then you can file for the judgment to be withdrawn and a new trial ordered...but, you will have to show why you were not properly served. Also, you have time limits, so if you were improperly served, I would head for the clerk of the court's office and file that motion right away.

      You ask why they would go after a $1,000 debt? Because they only paid $10 for it.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      Abbie Santana,

      They may have bought that information, but where is their verification of the debt? Where is their accounting that shows that the original creditor has verified that the amount they allege you owe is properly accounted for?

      These items are very important, and I would demand that they produce them. In many cases, when these junk debt buyers purchase these bad debts, the original creditor issues a disclaimer that comes with that purchase, which disclaimer states that the amounts may not be correct, and may not reflect payments, interest rates, and other things. So, they need to verify the amount they are alleging by showing verifiable proof that the accounting is legitimate.

      Brian

    • profile image

      curious1 

      2 weeks ago

      Midland (their BS lawyers) filed a default judgment, I didn't even know except by contacting the court. They just got the judgment 5 days ago and they already filed the paperwork to garnish my wages. I have a few choice words for these a-holes at this point! I call the creditor to make payments and they say nope, we already filed the paperwork for garnishment! I'm curious, say you owe a 1,000.00 debt... by the time they have paid to file their paperwork, the time they spend in court and mailing notices, it seems rather stupid to even waste their time considering they probably are spending darn near what they are trying to collect from someone.... what's the point?! just thinking out loud I suppose.

    • profile image

      Abbie Santana 

      2 weeks ago

      Hi Brian, my hearing is next Wednesday and I was doing another run through all the paperwork I've received from them. I somehow overlooked that I did, in fact, receive payment records with the items of what I bought and their cost listed. In the above article, it says that they usually don't have access to this. Could you tell me if there is a known factor in this situation that they would have that?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      Vinsey,

      Before you do anything, read this consent decree that was filed against Portfolio several years ago. It will give you lots of ammunition.

      http://files.consumerfinance.gov/f/201509_cfpb_con...

      As for deciding between arbitration and going to court in trial, there are pros and cons to each, so I do not make a habit of telling people which is the best. Here is a good link to study with that regard:

      https://www.creditinfocenter.com/community/topic/3...

      I think once you have read the consent decree against Portfolio, you will notice a lot of their weaknesses, and you will be aware of many of their bluff tactics, like their affiant having witness authority (baloney). You will see it all in that consent decree.

      Just make sure that you adhere to the time limits for whatever action you choose.

      Good luck to you,

      Brian

    • profile image

      Vinsey 

      2 weeks ago

      I've just submitted a question about my case, but wanted to piggyback off it and say that I may have just realized why I've been so confused about how to answer my summons: I don't have a complaint. I was served three stapled forms: 1) a typical civil summons form, 2) a continuation of that form with a notice of TN exemption laws and the 30 day deadline, and 3) an affidavit of Portfolio Recovery's Custodian of Records making six statements. Lines 1 and 2 are just stating that she is competent to testify and is an authorized employee of PRA. Lines 3-5 state that the account is now owned by the Account Assignee, the records show that I owe $3k from account number ending in 7698 as of 2016 . Line 6 states that they believe I am not a minor or an incompetent individual, and declares I am not on active military duty.

      Is this the correct form I'm supposed to write my Answer to? I've been searching everywhere for samples of answers so I know how to format mine and after reading a few articles I realized they all say to answer Complaints. After seeing a sample Complaint online, that's much more understandable to write an Answer to than what I've been given.

      Thank you so much for taking the time to read this.

    • profile image

      Vinsey 

      2 weeks ago

      Brian, I'm so grateful to have come across your wealth of knowledge! I was served last week (in TN) by Portfolio Recovery Associates for charged off Barclays debt of $3k. I've been heavily researching how I should handle this so I can take appropriate action within the 30 day deadline. Arbitration has been highly recommended throughout my research but I have been completely stumped about how to file my Answer. Now that I've stumbled across your fantastic steps to beat this, I'm wondering whether I should pursue arbitration at all now. What are your thoughts regarding this? Also, do you have more information regarding how to file an Answer?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      POMONEY,

      You say that you already have an attorney, and the amount being claimed is over $20,000 , so my best advice is to work with your attorney, unless you feel that your attorney is not up to the task, because this is not a magisterial court case. You can chat with some very good attorneys at Nolo, and this link will provide a chat option for you, in case you would like to get a second opinion:

      https://www.nolo.com/legal-encyclopedia/debt-colle...

      As for Federated Law Group, here is a link to complaints against them at the Better Business Bureau:

      https://www.bbb.org/us/fl/juno-beach/profile/lawye...

      Good luck to you,

      Brian

    • profile image

      POMONEY 

      2 weeks ago

      Have you heard anything about Federated Law Group? They seem to be some crazy group of rash lawyers. Dealing with a Business loan "default" never physically signed a personal guarantee they have an electronic signature at the end of a contract. it was agreed many times that this loan was specifically for the business. to improve business credit. The business has gone under after several years of a great relationship. now they want the balance of over 20G's they have since served me with papers after my attorney tried to settle. Cleverly they like me to appear in another state for the court date. My claim I didn't sign a personal guarantee. The business has been dissolved and I did resign as acting agent. I understand that they file in another state so that you don't show up and they get a judgement. What should I do?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      Jason Lee,

      If there is a continuance request that has been granted by the plaintiff, it means that the plaintiff is given a delay in the date for the actual trial. When they are granted a leave to file a motion for summary judgment, they must notify you in writing that they are filing a motion for summary judgment as well as notifying the court. If they file for summary judgment, you normally have twenty days to respond with your motion to deny them the summary judgment. Basically, their arrogant act of filing a motion for summary judgment is assuming that you will not know what to do, and they are arrogantly saying that you don't need a trial, because you have no reason to win, and they have all the facts that should cause a ruling in their favor.

      So, deny them that arrogant ploy, and study this link:

      https://www.legalhelpwy.org/files/4414/2842/8355/M...

      I would also recommend chatting with an attorney at www.nolo.com , because they will be able to guide you through this process possibly better than the form I gave you on the link.

      If I were working without an attorney, I would make sure that I listed all the reasons this junk debt buyer did not deserve to win. Study the consent decrees that I linked in my article:

      http://files.consumerfinance.gov/f/201509_cfpb_con...

      http://files.consumerfinance.gov/f/201509_cfpb_con...

      These two consent decrees will really open your eyes to the illegal activities of many of these junk debt buyers.

      Good luck to you,

      Brian

    • profile image

      Jason Lee 

      2 weeks ago

      Quick update: Today was the scheduled trial date. I planned to take your advice and either request a dismissal or a 30 day continuance. However, during my check in I was told the Judge already granted the 90 day continuance for a April trial. I was then given a copy of the signed document by the judge which they later told me was just mailed to me (which came in the mail this afternoon). Anyway, the document also says "the Plaintiff is granted leave to file a motion for summary judgment." What does this mean? Seems like they are trying to get judgement without a trial?? What should my next move be?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      Jason,

      Sounds like they are trying to pull back and regroup. You must have thrown them a curve ball they weren't expecting. If it were me, personally, I would show up in court and file a motion to dismiss with prejudice, and my reasoning would be this: why the delay? Before they filed for suit, they were required to have sufficient proofs to win their case. There is no reason that they should now need more time to gather those required proofs. If they did not have them when they filed, and now they are begging for time to go find them, how is this legal standing?

      The judge will most likely side with the plaintiff and grant the delay, but I would politely fight it on those grounds. And if the judge is hell bent on granting them a delay, then I would politely motion that it be for no more than 30 days. It's all worth a shot.

      If all else fails, continue your defense by getting your preparations together.

      Brian

    • profile image

      Jason Lee 

      2 weeks ago

      Hi Brian,

      I'm just checking in again. Thanks for everything you have done so far. I really appreciate it!

      The Plaintiff has requested a continuance and leave to file motion for summary judgement. They are requesting 90 days. The original court date is scheduled for tomorrow 1/28. Seems like this request for continuance is last minute on them. Should I still go and maybe request for dismissal? My feeling is they will not be in attendance. What are your thoughts?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 weeks ago from Pennsylvania

      Angie,

      From what you have written here, it appears that you were never properly served. You need to file a motion with that court to have this judgment thrown out and a new trial ordered, your basis being that you were never properly served. Of course, you will have to state the reason, or reasons, that you were not properly served.

      Here is a link to some very useful advice on this subject:

      https://www.neweconomynyc.org/common-defenses-to-c...

      Good luck to you,

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 weeks ago from Pennsylvania

      CrazyDiamond,

      Congratulations! That is wonderful! You deserve to celebrate. You studied, got your act ready, and you made them bolt. They wanted a "lay down," and easy win. They wanted to scare you into running away from the courtroom so that they could get a default judgment against you, their standard modus operandi. But you did not give them that, and good for you. Another loss for the blood suckers! Thanks for sharing that information. i'm proud of you! You will encourage others.

      Brian

    • profile image

      CrazyDiamond 

      3 weeks ago

      Dear Mr. Gray,

      I took your advice in this article and I WON! Brilliant! It completely worked, I filed my answer, served a request for production, and BAM, the next thing you know Portfolio Recovery was filing their Motion for Nonsuit. You saved me tons of money, I didn't get a lawyer. I almost did, but decided what the hell, and took a chance! Thanks for your terrific advice in this article. Needless to say, I am saving my answer in the event they sue me again.

      Sincerely,

      CrazyDiamond

    • profile image

      Angie 

      3 weeks ago

      Hi Brian,

      As I requested debt validation for a Discover credit card debt appearing on my credit reports, I received the following letter in response from a collection agency representing the creditor, "As you are aware, this office represents the above-referenced creditor. The court has granted judgement on behalf of the creditor and against you on August 19 2016 in the amount of $3,321.29. Pursuant to New York state law, interest accrues on the judgement amount from the date of the judgement rate of 9% per annum. The total balance that DISCOVER BANK is seeking to recover is $3,675.76, and this amount will increase each day that the judgment amount remains unpaid due to the accrued interest. Please read the Notice of Judgement Debtor on the reverse side of this letter for a summary of your rights. All payments should be forwarded directly to this office and made payable to Discover Bank, or you can call or visit our website."

      This is the first that I am being made aware of any judgment or court date. In August of 2016, I was never subpoenaed nor was I delivered certified mail advising me of a court date where my appearance was required. I want to file a small claims suit against this claim as I have not been provided with any documentation bearing my signature. Please help on how I should go about this. Do I file a request for production and follow your outline listed above?

      Thanks for any advice!

      Angie

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 weeks ago from Pennsylvania

      JoeGug517,

      I love the sheer arrogance of Midland by asking you to do them the favor of judging yourself without any need of a court trial. Heck, they don't even need the judge. What hubris! If you answer each of these questions in the affirmative, why they can just send you a bill for the total amount they want from you. They are arrogant idiots!

      Absolutely give them that answer for all three of those questions. Then do this:

      Regarding question one, demand that Midland show legal proof that they indeed own this alleged debt. Where is their proof of their legal right of subrogation of the debt? Show how they validated this debt, and show their complete chain of verification of the debt from the original creditor up to the present. That's the law!

      Two, show the verification that proves that the amounts they claim are accounted for and verified as correct with proofs from the original creditor that these amounts have been verified all the way back to that source. That's the law, too.

      Three, since you do not have that information (I mean, who can recite their credit card numbers?), you need to see the original credit card agreement with your signature. This is called the "rule of attachment," and when they filed suit, they were required by law to attach all documents that verify their claims. Further, they were required to attach these documents of proof to whatever they sent to you. Did you receive them? I doubt it!

      The mere fact that they did not attach these documents to their filing, nor sent them to you in their communications, is grounds for dismissal. They prove that they do not have them by the mere fact that they are asking you to provide this material. The burden of proof ALWAYS rests upon the plaintiff...you are the defendant.

      So, hit them where it hurts. Send these demands to them via certified mail, return receipt requested. Give them thirty days to comply. If they do not, file a motion for dismissal with prejudice based on their failure to have these documents when they originally filed suit. Failure to have these proofs at the time of filing means that they lack standing, and their case should be dismissed.

      Good luck to you,

      Brian

    • profile image

      JoeGug517 

      3 weeks ago

      Brian, you're an absolute lifesaver. I was just served today by Midland Funding (It was given to someone at my house while I wasn't home.)

      Along with the Petition, they attached a Request for Admission of Fact - which includes 3 questions of admission:

      1) It is a fact that Midland is owner of all rights, title and interest in this receivable issued through Synchrony Bank

      2) It is a fact that your outstanding balance on the account is $2k+, together with additional interest of 5% from date of judgement, and with all costs of these proceedings, subject to a credit of $.00

      3) It is a fact that you applied for and were issued a (company name) account bearing (****** alleged account number bearing last 4 digits)

      Just want to be sure I answer properly. Do I use "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" for all three? And continue by drafting my Request for Production? Thanks in advance!

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 weeks ago from Pennsylvania

      Curious1,

      It depends, I guess, on who you speak to, but here are the basics. The junk debt buyer cannot win a judgment against an entity whom they have not properly served, and the law is very defined on what constitutes proper service of a summons. Now, here is where people will differ on their opinions relative to what comes next.

      Say they do manage to get a judgment against you. What then? They can cause a lot of chaos, garner wages, attach bank accounts, all while knowing that what they did is illegal, and all because they got their immoral judgment from a judge who should have asked more questions of their supposed service of the summons. So, what does that do for you?

      If they manage to get a judgment, and they finally execute on it, such as attaching your bank account or garnishing your wages, you then have to go to that court and ask them to halt the garnishment and order a new trial, because you were never properly served. You then have to show the court why you were never properly served. Then, if the court permits a new trial, you finally end up doing what I think you should have done now, and that is, go to court and fight these blood suckers. It is now or later, that is my honest opinion, because they are like cancer, they don't stop until you wipe them out.

      I would file a motion to dismiss with prejudice, and I would list as my reasoning that the junk debt buyer tried to get a judgment without proper service of a summons. They don't deserve a judgment in their favor after that antic. The judge may still want a trial, because they almost always favor "second chances" for these scum bags, but, me personally, I would file for a motion to dismiss, and if that failed, I would fight them in court.

      Brian

    • profile image

      Curious1 

      3 weeks ago

      Hi Brian,

      I have not been served, but I entered my name on my local court house site and noticed that I have a JDB suing me. Looks like they attempted to serve me but it states service returned by leaving summons with name refused. This was almost 10 months ago. Now I see a line indicating a "default judgement has been filed for "want of an answer". Can they legally request a default judgement at this point? I don't know who they "claim" to have served but it wasn't me! Thanks for any input/advice you may have.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 weeks ago from Pennsylvania

      T Rockford,

      They do not have to produce the actual receipts, but they do have to give an accurate accounting of how they arrived at the amount they allege that you owe, and that has to be verified by a paper trail that goes back to the original creditor with verification from the original creditor that the amount they allege is absolutely correct. That is the law, they have to obey. Demand that they produce this information, send the demand to them by certified mail, return receipt requested.

      Several years ago, two of the largest junk debt buyers in the country were sued by the Consumer Finance Protection Bureau, and some of the things that came out of that consent decree were alarming. Here are a couple of items that you might find interesting:

      Encore falsely told consumers the burden of proof was on them to disprove the debt: In sworn affidavits, Encore falsely told consumers and courts that the debt should be assumed to be valid because the consumer had not disputed it within a certain time period. In fact, Encore had the burden to first prove the debt was owed and accurate before the consumer had to challenge it.

      Misrepresented their intention to prove debts they sued consumers over: Encore and Portfolio Recovery Associates regularly attempted to collect on debts by suing consumers in state courts across the country. In numerous cases, the companies had no intention of proving these debts. They placed tens of thousands of debts with law firms staffed by only a handful of attorneys and in many cases made no effort to obtain the documents to back up their claims. Instead, the companies relied on consumers not filing a defense and winning the lawsuits by default.

      Stand your ground, make them verify, verify, verify. And good luck to you,

      Brian

    • profile image

      T Rockford 

      3 weeks ago

      Hi Brian.

      I am getting sued in New York and I am wondering if I ask the debt buyer that is suing me to produce all of the credit card receipts that I actually signed do they have to do that? I am reading in some places that they only have to produce statements.

      Thanks.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      Josh,

      You did well. The vast majority of their suits end with a judgment by default, because the defendants do not show up in court. The very few who do show up are so scared that they will sign anything. So, you threw them a nice big curve ball, and they ran. Good for you!

      Regarding celebrating, I would motion that the judge dismiss this one with prejudice. One of three things will happen: the judge will grant you the dismissal, the judge will not grant it so that the other side can have their limited time to come back and reorganize, or the other team gets fired up because you filed the motion, and they come back. It's a coin toss. In most of these cases, the guys file to dismiss without prejudice as a way to save face, but they know it is going to cost them more in courts costs than it is worth, so they just fade away.

      As for arbitration, here is a good link for you to study:

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

      Brian

    • profile image

      Joshua S Pester 

      4 weeks ago

      Hello Brian,

      I want to thank you again. I followed through with all your points in the article and even added one of my own, for instance I told the plaintiff's attorneys since they decided to show up with 2 attorneys at the actual trail, I guess they thought they could strong arm me. LOL. They made a settlement offer of $40/ month interest free and cut the debt in half. They weren't pleased when I said no! This all took place while waiting to go into court for trail. They fed me some legal mumbo-jumbo and I said your whole case is based off assumptions, you can't even produce a credit card agreement or contract, but yet your asking me and the Judge to assume there's a assignment clause in there. He gave me a weird look like he'd never heard someone say that before. He turned to his co-council and they had a private pow wow, and told me that they were going to motion for a dismissal without prejudice. I know they can still come after me again, but what are the odds they will sue me again? Can I celebrate or should I hold off untill the statute of limitations is up?

      I'm helping my girlfriend with some junk debt and was wondering how I would write up a dismissal based on the private arbitration clause in most credit card agreements? She only owes $850 and I would think the cost of an private arbitrator would be to much for them to pay. If you can help me with this matter it would be most appreciated. Thanks again!!!

      Josh

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      Avenal,

      You say that he has had Target on a payment plan as of September 2018, and he has not missed any payments. If he has not missed any payments, and the company he is paying has contracted with him to pay Target on a payment plan, then I would send the attorney a copy of the payment agreement and proof that the payments are current, via certified mail, return receipt requested. He, therefore, has no right to sue.

      I would also contact Apprisen and ask them what is going on.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      Wayne86,

      In most cases, the "law firms" that come after you try their best to make it seem as if they represent the original creditor directly, when, in fact, they are not. The vast majority represent junk debt buyers who bought these bad debts for literally pennies on the dollar, and more often than not, these junk debt buyers cannot validate these debts. They don't have the original contracts, and they cannot affirm the terms of the original contracts, either. But they will huff and bluff their way around this obvious pitfall for them, so hold their feet to the fire.

      It's a little arrogant on their part to start selling you on a payment plan, since they have not even won a judgment. Here is a good link for you:

      https://www.lemberglaw.com/rausch-sturm-collection...

      Good luck to you,

      Brian

    • profile image

      avenal 

      4 weeks ago

      Brian,

      I'm curious if you'll have the answer to this. An attorney served my partner with a summons on behalf of Target yesterday. As of September of last year, he has had Target on a payment plan through Apprisen (debt management plan) and has proof that he has been paying through that plan. The starting debt for Target through Apprisen was $770 - the same amount he's being taken to court over. How do we approach handling this situation? There's no denying this debt is his at this point, but he has been paying on it through a third party with proof of payment. I'm not sure if the debt was at any point sold, but whoever Apprisen was in touch with regarding this Target debt has been accepting payment on a monthly basis. We're in kind of a crunch and can't figure out what to do.

    • profile image

      Wayne86 

      4 weeks ago

      Hey Brian,

      Have a CC debt, got a request for payment

      from an attorney Rausch Sturm firm in 11/18. Responded with dispute validation within 30days, This attorney is collecting for capital one and their responds letter was identical to the initial letter with in their 30 days,

      (“ amount I am suppose to owe, a 3 month payment plan, the original creditor, account or ref#, and to make checks payable to capital one or pay through their portal.)

      I guess that is all I will get from them.

      I am pretty confident me filing a suit or being sued is probably inevitable and what I have learn from you I am not that worried.

      Actually if I get too scared I have approached a law firm for about a $1000 that has a proven history of beating them on credit card suits.

      Thank you in advance, your thoughts?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      CamelJockey79,

      Congratulations! That's good news. What a way to start the New Year. It just gets better from here.

      Brian

    • profile image

      CamelJockey79 

      4 weeks ago

      Hi Brian... I just want everyone to know to remain positive and be aware that Brian's advice WORKS! I was so worried because my credit score took a huge hit after I was unable to pay my credit card bills and when Cavalry took me to court. But I did exactly what Brian said, got my case dismissed, and now my credit is actually slowly getting better!

      Since all this happened, I've been been able to open 2 new credit cards (which I will use sparingly) both with $500 limits. The first card I was actually able to get the limit raised to $750 after the 1st 5 payments, and I'll be able to do that with the second card also.

      So if you think it's the end of the world and your credit is ruined forever, I'm here to tell you it's not! Follow Brian's advice, get these blood suckers away from you, pay all your bills on time, and you'll be able to build your credit back up again.

    • profile image

      Abbie Santana 

      4 weeks ago

      Thank you so much! I'll let you know how it all goes :) Have a great day!

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      Abbie Santana,

      Check with one of your local attorneys. Maybe it is the age of digital, but I wonder what your local jurisdiction has to say about the legal acceptance of sending requested documentation via CD with no paper copy.

      The fact that you are not able to open the "documentation" is grounds for non-acceptance, in my honest opinion, and I would object to it on the grounds that it is inadmissible for its lack of usefulness.

      The courts are always loathe to let a pro se defendant get a dismissal on the first attempt. But, nothing ventured, nothing gained. File the motion to dismiss with prejudice, list your reasons, and hope for the best. If nothing else, it builds a fire under the plaintiff's behind.

      If you sent the plaintiff a request for production, for example, and they failed to comply, I would argue that they failed to comply, because they do not have the requested material, and if they do not have this requested material, then they did not have it when they filed suit. Their failure to have this proof at the time of filing suit means that they lack legal standing, and the suit should be dismissed. It's worth a shot.

      Good luck to you,

      Brian

    • profile image

      Abbie Santana 

      4 weeks ago

      Thank you Brian! I just found out that they never even filed their "response" through the courts, and the CD they sent me is not opening up on any computers and I've tried on THREE. I also found out when I called the courts today to see if they have responded, that my response that I filed back in DEC is lost. Good thing I have the stamped copy at home. My next move is to file a motion to dismiss, in the motion, I am including ". Scienti et volenti non fit imjuria", as well as the fact that I was never served and the fact that they still haven't responded to my requests. Would you consider this a good next step?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      Joe,

      Study the materials that I posted from Rodney Miner. He was sued by Cavalry, and he won. He used a very good strategy, so it is worth studying.

      The statute of limitations for New York is 6 years, and it begins 30 days after the default, but these blood suckers know that, and they always seem to manage to get in just under the wire. As long as they file suit before the statute is up, the suit goes forward.

      They have to validate the debt. The time to request this is as soon as you receive the first dunning letter, the letter that says you owe them, which is sent before a suit is filed and which says that you have thirty days to dispute the debt. However, even if you have not answered that letter, they still have to legally prove their case in court. Your lack of response to that letter does not negate that requirement on their part. So, when you get to court, request that they show validation of the debt. One of the things required for validation of the debt is an accounting of the amounts that they allege that you owe. How do they arrive at those numbers? They can't simply show a number on some quasi statement and say, "There it is." They have to show a paper trail back to the original creditor with the original creditor's affirmation that this amount is true and correct. They should also produce the terms of the original agreement, which they won't have. They cannot expect you to have this, nor can they demand that you produce it. That is THEIR legal obligation, not yours.

      Study my article, and study it well. The burden of proof rests upon the plaintiff. Do not do their homework for them. And remember our most often used statement: Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim.

      Good luck to you,

      Brian

    • profile image

      Joe West 

      4 weeks ago

      Hi Brian.

      Great site! Thanks so much for all the useful information.

      I was served today by Cavalry SPV I on an old credit card debt with Citibank. I live in NY State. The last payment I made was almost six years ago so I don’t think the statute of limitations has quite expired, but it has been long enough that I don’t remember any of the specifics. Two questions immediately come to mind:

      I don’t remember disputing any of the charges on the statements (frankly, I don’t even remember receiving them) so does that mean I have lost my right to dispute them now?

      If I see something on a statement now (when/if I eventually receive them from Cavalry) that I don’t recognize can I require them to produce a signed credit card receipt?

      Thanks.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      Abbie Santana,

      First of all, by law, specifically the Fair Debt Collection Practices Act, you do not have to admit that you owe the debt, and failure to admit does not relieve the plaintiff of their legal requirement to prove in court that you owe them the alleged debt.

      Secondly, they have to validate the debt. Open the DVD and see what they have offered as proof of their validation of the debt. Did they show the original contract, the terms of that contract, and an accounting of how they arrived at the amount they allege you owe? Where is the verification from the original creditor that the amount they allege you owe is properly accounted for? Where is the accounting? And where is their legal right of subrogation of the debt?

      Portfolio Recovery Associates was sued effectively and harshly by the Consumer Finance Protection Bureau, and so many charges were brought against them, that I would review this lawsuit and study it before your trial. Here are some excerpts for you. In every reference, "Respondent" stands for PRA.

      Filing Misleading Collection Affidavits in Violation of the CFPA

      71. In numerous instances during the Relevant Period, in connection with collecting or attempting to collect Debt from Consumers, in Affidavits filed in courts across the country, Respondent represented directly or indirectly, expressly or by implication, that:

      a. PRA affiants had reviewed account-level documentation from the original creditor corroborating the Consumer's Debt;

      b. Documents attached to affidavits were specific to the Consumer; or

      c. PRA affiants were familiar with the content of account agreements.

      72. In truth and in fact, in numerous instances:

      a. PRA's affiants had not reviewed account-level documentation from the original creditor corroborating the Consumer's Debt;

      b. Documentation attached to affidavits was not specific to the Consumer; or

      c. PRA affiants were not familiar with the content of account agreements because, for example, the account agreements at issue were no longer available for affiants to review.

      Filing Misleading Collection Affidavits, in Violation of the FDCPA

      100. In numerous instances during the Relevant Period, in connection with collecting or attempting to collect Debt from Consumers, in affidavits filed in courts across the country, Respondent represented directly or indirectly, expressly or by implication, that:

      a. PRA affiants had reviewed account-level documentation from the original creditor corroborating the consumer's debt;

      b. Documents attached to affidavits were specific to the consumer; or

      c. PRA affiants were familiar with the content of account agreements.

      101. In truth and in fact, in numerous instances:

      a. PRA's affiants had not reviewed account-level documentation from the original creditor corroborating the consumer's debt;

      b. Documentation attached to affidavits was not specific to the consumer; or

      c. PRA affiants were not familiar with the content of account agreements because, for example, the account agreements at issue were no longer available for affiants to review.

      102. The representations set forth in Paragraph 100 are false or misleading and constitute a deceptive act or practice in violation of Sections 807, and 807(10) of the FDCPA, 15 U.S.C. §§ 1692e, 1692e(10).

      I hope this is of some help to you,

      Brian

      P.S. As for admitting anything, use our standard response: 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.

    • profile image

      Abbie Santana 

      4 weeks ago

      Hello Brian,

      I was served by PRA in Dec for a balance of $1,466.37 from 4 years ago with TJ Maxx. I should mention I wasn't properly served, I was at work and the guy left it with my boyfriend at home. Knowing a little bit about how debt junk buyers, I filed a response similar to your "Request for Production" and at the end stated that if they did not respond within 30 days, the case would basically need to be dismissed. Well, they never filed a responded and my court date was already set from the lawsuit paperwork I received from the server. I showed up to court, it was a week before Christmas, and the judge announces that it wouldn't be a trial that. We just had to either agree or disagree on our case, they called my name up and I told them I disagreed and now I have a trial date for Feb 6th, 2019. I finally received a response back from PRA's attorney and they included a DVD that should contain all the answers to my questions. I have yet to open it and read what's on there, but they also included some questions they wanted me to "Admit to". And that's where I have to ask, how do I respond to their questions? Wouldn't admitting that I owe the balance, or that the account number was rightfully under my name, put me in a bad position when I go to trial? I also do not want to avoid responding as they also included a portion that says "Failure to timely respond to requests for admissions in compliance with rule 59.01 shall result in each matter admitted by you and not subject to further dispute." They dated this Jan 2, 2019. Any suggestions would help! Thank you.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      Wayne86,

      Here is an interesting link to some excellent expositive material on CMRE that you should read:

      https://www.lemberglaw.com/cmre-financial-services...

      If a debt collector cannot verify a debt, then they cannot collect on that debt, that is the law, and the Fair Debt Collection Practices Act is very clear on what verifies a debt. CMRE has had quite a number of run ins with the legal world and consumer protection agencies, as you will see by the link that I provided for you. Proper validation of the debt requires an affidavit from the original creditor verifying every aspect of the alleged debt, and I sincerely doubt that CMRE has that in their possession. For them to simply send you a photo of a statement, then try to scare you into settling with them, reeks of illegality, and they know it.

      I hope you retain a competent attorney and go after them. Good luck to you,

      Brian

    • profile image

      Wayne86 

      4 weeks ago

      Brian Gray

      You information is so valuable

      I want to file a lawsuit against against a collection agency CMRE out of California. Won’t properly validate debt. Validating by only a photo of a statement with an amount, a say that is all they will do. One bureau removed debt and another says meets FDCRA. I will first file a complaint with FTC and Consumer Protection.

      I am invisioning filing a lawsuit here in Houston Tx. against the collection agency

      Thoughts

      Thank you in advance

    • Hanavee profile imageAUTHOR

      Brian Gray 

      6 weeks ago from Pennsylvania

      EmmasGammy,

      You did the right thing. Good luck to you.

      Brian

    • profile image

      EmmasGammy 

      6 weeks ago

      After making some phone calls including a call to Capital One and having a consultation with a lawyer, I found out I am being sued by Capital One. So I hired the lawyer. Thank you anyway.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      6 weeks ago from Pennsylvania

      Ron,

      Study the Fair Debt Collection Practices Act, and you will see that it covers all collection activities.

      For example, based on the information contained in the Fair Debt Collection Practices Act, we learn that

      debt collectors may play loose with the law, and such activity is strictly prohibited. In numerous instances, in connection with attempting to collect debt through litigation or threats of litigation, debt collectors may express to you that under the FDCPA, the failure to dispute a debt in writing within a certain period of time shifts the legal burden to you to prove in court that you do not owe the debt. However, the fact is that, under the FDCPA, the failure to dispute a debt in writing within a certain period of time does not shift the legal burden to you to prove in court that you do not owe a debt.

      Study so that you know your rights. Also, the amount of money owed here is not worth them going to court, especially if you make it costly for them by making them work for it. They really want you to run away and hide. Then they can get a judgment by default. Do the opposite. Fight them all the way.

      If you properly terminated a contract with one provider and went with another, this may be a viable defense. Where they may try to get you is not fulfilling a term of length that may have been in your original agreement, or penalties for early termination. Bad or shoddy service on their part could be grounds for terminating your relation with AT&T, since that would mean that they failed their end of the agreement, thus making it null and void.

      Check your statute of limitations in your State, know your rights, and hang in there. Good luck to you,

      Brian

    • profile image

      Ron 

      6 weeks ago

      I have received a "friendly" letter from Credence Resource Management asking me to pay a bill of $326.66 that was "owed" to AT&T. It wasn't owed to AT&T and resulted in a lack of response from them when I sent statements back to them after I changed internet service providers from them to Spectrum. I wrote them and told them why I wouldn't pay for their service after the change to another provider. I have sent Credence a request for validation of the debt and a demand that they not contact my residence by phone at any time using either my or my wife's phone numbers. I believe that they have already called several times, but I don't talk to people whose numbers I don't recognize. I may say hello, but if the person on the other end speaks in an Indian dialect or wants to sell something I didn't request, I hang up. Do your recommendations apply to any collection company regardless of the type of alleged debt it is trying to collect or only those for credit card debt? I plan on using your recommendations on how to proceed including petitioning the court for a summary judgement dismissal with prejudice based on the federal requirements regarding debt collection practices. I think I have a stronger case since I switched providers and contested all billing after that date in writing to AT&T than if it were for a legitimate debt using a credit card. Thanks for your blog and your attentive responses to our many questions.l

    • Hanavee profile imageAUTHOR

      Brian Gray 

      8 weeks ago from Pennsylvania

      Devon1969,

      That is a good question for a local attorney, because local attorneys may be familiar with the attorneys who signed off on this, and they may have some interesting insights to share. I would call around and ask until I got the answer I was looking for.

      Brian

    • profile image

      Devon1969 

      8 weeks ago

      Brian, again thanks for all the answers you have already provided.

      If you recall in my case the Process Server electronically booked in the Non-Served Summons as served. Can this be considered malpractice on the Process Servers part? Is the Attorney who hired the process server responsible for the actions of the server, since a copy of the non-service would likely be sent to them?

      Thank you.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      8 weeks ago from Pennsylvania

      Jason Lee,

      I, personally, would say: "As pertains to the alleged account statements, I do not have the original(s) in my possession with which to compare, and I would have to rely on memory as to whether or not any account statements allegedly sent to me were identical to the ones submitted herein by the plaintiff, and, as such, I can neither confirm nor deny that these are exact duplicates of the alleged account statements."

      Brian

    • profile image

      Jason Lee 

      2 months ago

      Thank you for the additional help. I'm currently preparing the request for interrogatories. Within the packet they have attached (2) account statements with my name and address. The final question says, "Admit that you received the account statement, copy of which is attached hereto as Exhibit "A". " I have denied all the prior questions using the response you provided but this one is a bit tricky. How should I respond to this one? I feel admitting I have received the account statements will lower my defense.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Jason Smith,

      To answer your question in the short form, yes, they are in violation of the Fair Debt Collection Practices Act, and they are trying to ignore that fact in hopes that you don't have the legal savvy to go after them. The long answer is, you should hire the services of an attorney to do this, because you only get one chance to get this right. Court is not a dress rehearsal.

      I think that you may just have them over a barrel, so I would hire an attorney to pursue this. If you cannot afford an attorney, at least pay for a one-hour, private consultation with one. It will be time well spent.

      Good luck to you,

      Brian

    • Jaysmith2323 profile image

      Jason Smith 

      2 months ago from New England

      Long story short:

      I have a $7,000 debt that is now with portfolio recovery. In July I received a letter from an attorney telling me to pay or go to court. Within 30 days I sent them a request for debt validation pursuant to the FDCPA. This was sent certified and they signed for it.

      In October I received a court notice that they have filed a claim against me. At that point they had not provided any debt validation per my request. I sent them another certified letter advising them that they were in violation of the FDCPA and I requested that the court action against me be withdrawn.

      My interpretation of the FDCPA section 809 is that they are supposed to stop all collection efforts once a request for validation is requested. In this case they did not send me anything at all and just went ahead and filed a claim in court.

      However, yesterday (December 15th) I received a packet from them for validation. It contains just numerous old account statements and a bill of sale between Synchrony Banks and Portfolio Recovery.

      I now have a court date for January 4th.

      Any advice on how to proceed? Can I use the fact that they filed their claim prior to providing validation against them?

      Thanks

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Linda Hawthorne,

      I would contact the clerk of the court and discuss the time discrepancy on the summons. You have a time limit that begins from the date of service received, so you need to let them know when you were served, and then check the status of your case.

      Defendants answer is right there in my article in bold print: "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." Anything that asks you to essentially incriminate yourself, that is the answer. If they are asking for innocuous things, such as mailing address, name rank and serial number, that you can answer with the obvious, but in no way do you want to do the work of the plaintiff in your answer. The burden of proof rests with the plaintiff, so make them prove their case.

      Some locales will not honor the request for production in these types of cases, but I would still send it to the plaintiff right away, because it sends the signal that you are not going to run away, but are going to put up a qualified fight.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Devon1969,

      If the filing in court is as you say it is, then there is that possibility that the original creditor is suing through one of their internal processes. Usually, somewhere in the fine print is the identity of the actual plaintiff, and it may even require asking the clerk of the court for clarity, or consulting with an attorney to see what they can find for you.

      Getting venue changed requires petitioning the court. You will need to contact the clerk of the court.

      Brian

    • profile image

      Linda Hawthorne 

      2 months ago

      Hello Brian

      I received a summons today 12/15/18 dated 10/24/18 said 14 days to respond with answer it has a form attached that says defendents answer. What am i supposed to write I'm confused on the time frame also since it says October almost 2 months later. Also when am I supposed to ask for production in the answer or at the hearing

    • profile image

      Devon1969 

      2 months ago

      Brian, thanks again for your thoughtful comments.

      Sorry to ask so many questions.

      In the heading of the complaint it is "xyz bank vs John Doe". I'm missing how that could be the junk buyer unless XYZ bank has their own junk division.

      How does one get the venue changed in a case like this?

      Thank you.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Devon1969,

      The fact that they can only give you the last statement is part of your defense. Secondly, if they have charged off the account, it would appear that you are being sued by a junk debt buyer. I would ask them to show proof of their legal right of subrogation of the debt.

      Typically, when the original creditor charges off the debt, it is sold at a junk debt auction and purchased by junk debt buyers. Junk debt buyers then try to make people think that they are the original creditors demanding payment of the debt, and this scare tactic usually works. The trouble is, pretending to be the original creditor is illegal, so they usually skirt very close to the edge of the law when doing this, but if you can nail them on false representation, that is the end of their case.

      And, yes, they have to sue you locally.

      Brian

    • profile image

      Devon1969 

      2 months ago

      Thanks Brian,

      I have asked on 3 separate occasions for the original documents on this loan and all I get back is the last statement generated.

      Am I still entitled to demand discovery? Seems that they do not have the original documents.

      Also they have charge off the amount, what does that mean.

      Even though I do not live in the state and did not live in the state at the time of filing, can I get this moved or canceled so the have to sue me locally?

      Thanks

      Thank you.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Devon 1969,

      As I always say, they may make a few mistakes along the way while trying to serve you, but eventually, they will catch up to the correct address and, in most cases, they will eventually serve properly. That is why I tell people to get proactive and take them on, rather than running and hiding.

      All that being said, it does seem to me that something is amiss, especially with the notification to the court that you were properly served when you were not. That one particular has me intrigued. I would pay for a one-hour, private consultation with a lawyer from your locale and ask them if there are any technical loopholes that we are unaware of, because, frankly, it seems to me that someone played loose with the law. And, if this is the case, then punitive actions should be invoked.

      If the bank is personally coming after you, it is going to be difficult for you to duck the liability, but, nonetheless, I would research that seemingly false service statement. That could be useful ammunition.

      Brian

    • profile image

      Devon1969 

      2 months ago

      Thanks for all the great information on this page.

      It's very helpful.

      In my particular situation I moved out of state over a year ago and I recently became aware that a bank has filed against me and has been trying to serve me on at my old address. Online I see that the first service was returned "non-served" and the second service was also returned non-served however the process server (looks like a big server company) booked it electronically as SUMMONS SERVED even though he filed a non-served document. Of course the court fails to check on service done electronically so it is still booked as SUMMONS SERVED. Seems to me that this is malpractice by the server.

      Since the attorney for the bank hired the process server is the attorney also responsible for actions of the process server? Since the attorneys are filing electronically they will get notice of the SUMMONS SERVED entry and also get a copy of the NON SERVED RETURN both electronically and physically from the process server and as a officer of the court don't they have an obligation to correct the error? Is my thinking correct on this?

      If I alert the court to the error is that not the same as accepting service?

      I read on your site with other questions that you believe one should just accept the complaint and fight it, but is not proper service an actual first line defense of any case?

      Also even though I have disputed this debt in writing 3 times(with USPS tracking) the attorney still wrote in there complaint that there was no dispute. Also on the last reply to their demand (30 days before filing) I provided a change of address page.

      Seems to me this attorney is breaking some laws/rules in just the filing, let alone now by not correcting the error their agent made.

      Also since the bank has not sold the debt to a junk company, do I face any particular challenge?

      Thanks for your time reviewing this.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months 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 

      2 months 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 

      2 months 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 

      2 months 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 

      2 months 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 

      2 months 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 months ago from Pennsylvania

      HeOtha,

      Good luck to you.

      Brian

    • profile image

      HeOtha 

      2 months ago

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

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months 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 months 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 

      2 months 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 

      2 months 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 

      2 months 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 

      2 months 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 

      2 months 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

      2 months 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 

      2 months 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 

      2 months 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?

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