You Can Beat Credit Card Debt Collectors

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

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

Debt collection is a big business always looking for growth opportunities. In January of 1990, credit card debt was at $214 billion, but by January of 2009, during the greatest recession in history, it grew to $964 billion. As the recession began, people were rapidly losing their jobs, and thus, their ability to keep up with the payments on that debt. Good people were being forced into default on their accounts.

So, what did the credit card companies do? They kept on lending, they kept on raking in profits, and they kept engaging in a relatively unknown practice of selling those defaulted debts to companies that had no connection to your original debt. This line alone should raise your eyebrows and cause you to say, “What?” Yes, the credit card company whose card you had been using sold your debt to someone else...and they, the credit card company, promptly washed their hands of your old debt. Stunning, isn’t it?

In 2008 alone, over $123 billion in charged-off debts were sold to companies that then pursued those debts as if they owned them. But they don’t...at least not until you make a fatal mistake and give them the right.

You see, when you signed the original agreement with your credit card company, you signed a contract with your original credit card company. Think about what I just said, because this is where winning your battle begins. Yes, you signed an agreement with your credit card company, but you did not sign one with the companies that bought your debt from the credit card company. Sound crazy? If they don’t have a right to your debt, then why are they coming after you? Because you don’t know your rights, they know this, and they collect billions of dollars every year at massive profits.

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

What to Do

So, let’s first look at what NOT to do. Do NOT ignore the certified letter. Do NOT miss the court date. You will win if you follow what I am going to outline here; however, the clock begins ticking the minute you sign for that certified letter. Sign it, then begin acting on your rights immediately.

Answer the Summons

Read the letter that comes from the court. It will state how many days you have to file an answer: that is, an answer saying that you plan to defend yourself in court. You must do this immediately.

If it is a magisterial court, you can defend yourself. If it is a higher court, then you need to retain a lawyer. If you opt to retain a lawyer, you do not need a high-priced one. After you have read my article, you can tell any lawyer exactly how to proceed, although he or she should already know this.

Once you have answered the court summons, and you have told them that you definitely intend to defend yourself, the court will set a date for the hearing. Mark that date on your calendar as the day you will walk out of court a winner. Above all, do not miss that court date! If you do not show up in court, you will lose by default, which means that the collection company that is coming after you now owns the debt that was otherwise written off and had become worthless. Miss the court date, lose by default, and you owe money to blood-suckers who will garnish your wages and attach your bank accounts. Attend that court date!

File a Request for Production

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

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

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

Why You File a Request for Production

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

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

What to Say on the Day of the Hearing

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

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

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

Now, a trick here is used when a plaintiff does show up in court in an attempt to trip you up and win through trickery alone. They will call you to the witness stand, brandish a copy of the original contract issued by the credit card company, and ask you, under oath, if you are denying that you signed this agreement with the credit card company.

If you say that you are not denying that you signed the agreement, you lose. You simply state that you are without knowledge sufficient to form an opinion as to the accuracy of the Plaintiff’s claim, and add nothing more. You can repeat this as often as you need to until the judge loses his patience and orders the plaintiff to sit down. The plaintiff is waving a blank piece of paper in front of you. It does not contain your signature, and it is not the original signed agreement. It is worthless.

For your next step, you state the following:

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

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

You want to state this:

"Plaintiff’s claim demands monies for an alleged debt for which no proof of said debt, nor proof of ownership of said debt, has been verified and exhibited."

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

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

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

What you just told the judge is that the plaintiff, in this case, the lawyer representing the collection company, has not presented proof that he, or his company, owns the debt. Why does he own it? Did you sign an agreement with him? Is he a credit card company? The answer is, no. You do not owe him, or his company, anything. He is required, by law, to show why you owe him, or his company. He will not be able to prove this...unless you have made one fatal mistake.

If you have been scared into making any payment arrangements and have already made payments to his company, then I would seek legal help in unraveling their tentacles. Cardinal rule: do not make payments, or agreements to make payments, to any company that is calling about a debt that you owed someone else. Doing so creates a contract that may be binding.

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

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

Next, we come to:

4. Insufficient specificity in a pleading.

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

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

Next on the list:

5. Defendant cites Failure of Consideration:

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

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

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

Next, we come to:

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

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

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

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

In court, if you had to argue this, you would simply state:

"Plaintiff is not an assignee for the purported agreement, and Plaintiff has not offered any evidence to the contrary. As there is no proof offered, assuming that it exists would create an unfair prejudice against the Defendant."

Now, we move to:

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

You can simply state,

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

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

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

Nearing the end of our list, we come to:

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

Plaintiff claims to have a contract with you; thus, Plaintiff has to produce it, because such a contract falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the complaint was not in writing and signed by Defendant or by some other person authorized by Defendant and who was to answer for the debt, default, or miscarriage of another person.

In order for the collection company to state that it had an agreement with you, it has to show how it was going to benefit you. For example, was the collection company going to issue you credit like a credit card company? Highly unlikely. Therefore, to say that it had a contract with you is fraudulent, because the collection company cannot provide the same services as the credit card company did. It would be like the credit card company selling your contract to another company that required you to sell your house to them at the end of one year. This new requirement would not be something that you agreed to in the original contract, and since there was no “meeting of the minds,” you did not come to any agreement with the collection company.

Here, then, you simply cite statute of frauds. Research your state’s case law to see how your state stands on this point. In any case, because the collection company cannot provide the same services as the original credit card company, adding this new requirement is breach of contract; thus, we invoke “statute of frauds.”

Lastly, we come to:

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

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

More Things You Should Know

Statute of Limitations

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

Is the Debt Satisfied?

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

Debt Collectors Need To Validate the Debt

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

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

The Attachment Rule

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

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

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

Check Every Rule, and Good Luck

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

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

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

Brian Gray

Additional Materials For Your Help

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

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

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

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

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

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

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

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

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

Illegal Collection Efforts in the News

Federal Government Orders Firm to Stop Unsupported Collection Lawsuits

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

Fraudulent Debt Collection is Big Business

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

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

Information From NOLO on Debt Verification

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

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

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

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

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

What Documentation Must the Creditor Provide?

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

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

What If the Collector Cannot Produce the Assignment?

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

Counterclaims if the Collector Did Not Previously Verify the Debt

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

An Important Article To Read From The New York Times

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

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

Here is a quote:

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

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

From New York Times article by Jake Halpern

More from this article:

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

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

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

More from Halpern's article:

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

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

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


Letter Requesting Validation of Debt

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

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

*What the money you say I owe is for;

*Explain how you calculated what you say I owe:

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

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

*Identify the original creditor;

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

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

*Provide me with your license numbers and Registered Agent.

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

*Violation of the Fair Credit Reporting Act

*Violation of the Fair Debt Collection Practices Act

*Defamation of Character

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

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

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

What Is Subrogation?

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

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

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

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

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

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

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

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

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

Two Good Subrogation Definitions

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

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

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

More About Subrogation

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

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

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

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

Transferring Your Account

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


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

The Order of Transition in Credit Card Debt

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

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

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

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

A Deceptive Collection Practice

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

"Dear (Your Name Here),

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

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

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

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

One of My Readers Shared This Exceptional Material

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


Rodney Miner

Kellogg, Idaho 83837

208/786-2810

Defendant

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

MAGISTRATE DIVISION

Cavalry SPV I, LLC,

Plaintiff,

vs.

Rodney Miner,

Defendant.

Case No.: CV-2017-586

RESPONSE TO MOTION FOR SUMMARY JUDGMENT

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

MEMORANDUM OF POINTS AND AUTHORITIES

I. Fact

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

Legal Argument

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

Defendant is entitled to recover its costs.

III. Conclusion

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

DATED this fourth day of January, 2018

_________________________________

Rodney Miner

Defendant Pro Se

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

John H. Wilkinson ISB #8597

Machol & Johannes, LLC

1412 W. Idaho Street, Set 238

Boise, ID 83702

Attorney for Plaintiff

Sent by: Rodney Miner

More Great Material Shared By Rodney Miner

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

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

Order To Dismiss Without Prejudice Provided By Rodney Miner

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

Here is the Timeline for Rodney Miner's Case

Here is the Rodney Miner suit Timeline.

11/07/17 Served SUMMONS

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

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

Pretrial Conference: Monday, January 8, 2018

Status: Monday, February 12, 2018

Court Trial: Wednesday, February 28, 2018

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

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

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

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

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

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

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


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

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

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

Another Very Interesting and Educational Link

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

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

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

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

You can find it here:

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

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

Questions & Answers

  • Afamily member made a payment in my name to the debt collector. I did not consent to, or sign, any papers, nor did I speak to them on the phone to set up a payment plan. What can I do. This debt is ten years old. What is my next move?

    In my understanding of contract law, only the signatories to a contract are bound thereby. First, there has to be a contract between the debt collector and you. Secondly, for anyone else to make a payment on that contract, they must be signatory to it. If the family member who sent the debt collector a payment did so without being a signatory to any contract, their action does not create a contract between you and any entity, nor does it enforce a contract between you and the debt collector. The only way a relative could do that would be to have power of attorney, and I doubt they have this.

    Research the statute of limitations for your State. Ten years means that you are most likely past the statute of limitations, and this debt collector cannot sue for this debt. If this is the case, send them a letter demanding that they cease and desist from contacting you. Tell them that you will report them to the appropriate Federal agencies if they persist. Keep a copy of the letter, and send the letter to them via certified mail, return receipt requested.

  • If the original lender charged off an account due to hardship but sold the account to a junk debt buyer and my mother is still being sued can I still file a motion for dismissal? Also her rights have been violated per the FDCPA.

    When a lender charges off an account, regardless of the reason, they may opt to pursue it through their own collection department, or they may take a payout from an insurance company, or even a tax credit. If they have taken an insurance payoff or a tax credit, then they cannot sell the account to anyone, nor can anyone other than the insurance company that paid the original creditor pursue collection on the account. This is called legal right of subrogation of the debt. I would ask the plaintiff to show that they have legal right of subrogation of the debt.

    Filing a motion for dismissal requires a compelling reason. Read my article, and study the many posts on the site, to see what applies to your case. You will find your reasons there.

  • My husband received a summons to appear in civil court from a debt collector. I am trying to send the Request for Production, but the address of the plaintiff is not on there just the name and a name and address for the law firm of theirs. Also, there is no judge name just the county clerk. What do I do?

    The law firm that is contacting you is the entity that you would be dealing with.

    If this is in civil court and not the magisterial court, then you definitely need an attorney. The magisterial court is much more relaxed with regard to legalities, but civil court is much more formal, and the attorney for the plaintiff will use that to your disadvantage.

    By all means, contact an attorney immediately.

  • Midland Funding is taking me to small claims court, and I am unsure of what to do. I’ve never been sued. I read your article, and I plan to use your advice, but I’m sure I wouldn’t remember all of this off the top of my head. Is it okay to write these things down? I am in Massachusetts. I don’t even know how much time I have to respond, because nothing on the court letter mentions any directions.

    If you have been summoned to court, the date setting a time limit for which to respond is printed on the notice. If you cannot find it, contact the clerk of the court and ask.

    Yes, you may write these things down, but you may not read them aloud in court. You may refer to your notes, but you must usually ask for permission to read anything that you are entering into the record, and reading your entire defense would not be permissible. Study your notes, summarize them, and anticipate what the other side might try to argue. If need be, attend a court case and see what goes on. That way, you will be less nervous about the situation.

  • I have been sued by cavalry spv1, LLC and no attachments are included in the summons. Is this legal? I thought the attachment rule applied? Am I wrong?

    Ask the clerk of the court what evidence was submitted to the court with the filing by the plaintiff, specifically regarding the lack of attachments.

Comments

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    • Hanavee profile imageAUTHOR

      Brian Gray 

      10 days ago from Pennsylvania

      Anna Gilliano,

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

      Brian

    • profile image

      Anna Gilliano 

      11 days ago

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

    • Hanavee profile imageAUTHOR

      Brian Gray 

      12 days ago from Pennsylvania

      RobertC22,

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

      So, yes, you use the standard line:

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

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

      Good luck to you,

      Brian

      the plaintiff has not provided sufficient information

    • profile image

      RobertC22 

      13 days ago

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

      thank you

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      ProudAmerican,

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

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

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

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

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

      Brian

    • profile image

      ProudAmerican 

      2 weeks ago

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

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      CamelJockey,

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

      Brian

    • profile image

      CamelJockey79 

      2 weeks ago

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

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

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      HarrisCalvin,

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

      Brian

    • profile image

      HarrisCalvin 

      3 weeks ago

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

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 weeks ago from Pennsylvania

      HarrisCalvin,

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

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 weeks ago from Pennsylvania

      HarrisCalvin,

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

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

      Brian

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

    • profile image

      HarrisCalvin 

      3 weeks ago

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

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

    • profile image

      HarrisCalvin 

      3 weeks ago

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

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

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

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

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

      1. Repudiation

      2. Verification of debt

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

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 weeks ago from Pennsylvania

      Jacknickols,

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

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

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

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

      If they file suit after no more contact or demands for information, then you may want to use this against them. Tell the judge that you asked for their legal proofs via a request for validation, and you were given insufficient evidence to prove their case. Then, stand on our pat answer: Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim.

      Brian

    • profile image

      Jacknickols 

      3 weeks ago

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

      Thank you.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 weeks ago from Pennsylvania

      Jacknickols,

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

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

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

      Good luck to you,

      Brian

    • profile image

      Jacknickols 

      3 weeks ago

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

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

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 weeks ago from Pennsylvania

      ConstMgr,

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

      Brian

    • profile image

      Const Mgr 

      3 weeks ago

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

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

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 weeks ago from Pennsylvania

      HarrisCalvin,

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

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

      Good luck to you,

      Brian

    • profile image

      HarrisCalvin 

      3 weeks ago

      CORRECTION:

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

    • profile image

      HarrisCalvin 

      3 weeks ago

      Hello Brian,

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

      I have a couple questions based on my defense

      Quick Timeline:

      1. Sued

      2. Submitted Request for Production

      3. 30 days went by without a response

      4. Submitted a Motion to Dismiss with Prejudice

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

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

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

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

      My defense points

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

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

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

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

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

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

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

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

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

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

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

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

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

    • profile image

      HarrisCalvin 

      3 weeks ago

      comment test

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      Daniel Horowitz 1,

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

      Good luck to you,

      Brian

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

    • profile image

      Daniel Horowitz 1 

      4 weeks ago

      Mr. Gray,

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

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

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

      Daniel

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      Joshua A Pester,

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

      Brian

    • profile image

      Joshua S Pester 

      4 weeks ago

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

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      Joshua S Pester,

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

      Good luck to you,

      Brian

    • profile image

      Joshua S Pester 

      4 weeks ago

      Hello Brian,

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

    • Hanavee profile imageAUTHOR

      Brian Gray 

      5 weeks ago from Pennsylvania

      Moby612,

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

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

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

      Good luck to you,

      Brian

    • profile image

      Moby612 

      5 weeks ago

      Hi again Brian,

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

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

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

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

    • Hanavee profile imageAUTHOR

      Brian Gray 

      5 weeks ago from Pennsylvania

      Brice Ruppert,

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

      Here is a good link explaining this new law:

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

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

      Brian

    • profile image

      brice ruppert 

      5 weeks ago

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

    • Hanavee profile imageAUTHOR

      Brian Gray 

      5 weeks ago from Pennsylvania

      DarwinAndujar,

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

      Brian

    • profile image

      DarwinAndujar 

      6 weeks ago

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

    • Hanavee profile imageAUTHOR

      Brian Gray 

      7 weeks ago from Pennsylvania

      Yogurt,

      I am not sure what you are asking.

      Brian

    • profile image

      Yogurt 

      7 weeks ago

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

    • Hanavee profile imageAUTHOR

      Brian Gray 

      8 weeks ago from Pennsylvania

      Moby612,

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

      If they ask me to agree to their findings, I simply repeat the standard line: Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim.

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

      Brian

    • profile image

      Moby612 

      8 weeks ago

      Thanks Brian.

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

    • Hanavee profile imageAUTHOR

      Brian Gray 

      8 weeks ago from Pennsylvania

      Moby12,

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

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

      Brian

    • profile image

      Moby12 

      8 weeks ago

      Hi Brian,

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

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

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

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

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

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

      Thanks in advance

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Stepehn,

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

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

      Brian

    • profile image

      Stephen 

      2 months ago

      Hi Brian,

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

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

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Claver,

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

      Brian

    • profile image

      Claver 

      2 months ago

      I have started making payment to a debt collection agency. what should i do to stop the payments.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Coach,

      The "above styled matter" simply refers to your case and court information, such as court location and docket number.

      No one can predict what a plaintiff will do, but sometimes these junk debt buyers bluff until the very end. Sometimes, they fold, because you played a rough game from the get go, and they figured you knew what they hoped you did not, that they didn't have a genuine leg to stand on. Fight to the end, do your homework, and here's hoping that you win.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Moby12,

      Yes, you want to copy that form. I know it is tedium, but by typing it out, you will come to better familiarize yourself with each of the lines therein. You want to know this material, because you may have to recite it in court.

      Brian

    • profile image

      coach 

      2 months ago

      Mr. Gray,

      I'm in the middle of a warrant in debt case in Virginia. I filed a motion to compel arbitration with an affidavit (user agreement) at our last hearing and the judge set a hearing AND trial for late October. Couple of questions:

      I just received a letter from the JDB law firm that says: "Please be advised that the above styled matter has been continued to..." What does styled matter mean?

      I'm assuming that if the Motion to Compel Arbitration is denied I'll need to be prepared for trial? At that point I plan on attacking the Affidavit of Claim (Debt) and Bill of Sale as hearsay and fragmental, respectively.

      If the Motion to Compel Arbitration is granted and the case is dismissed or stayed, what is the likelyhood that the JDB follows me into arbitration.

      Thanks for your help!

    • profile image

      Moby12 

      2 months ago

      Hey Brian,

      I filed my answer and received a court date which is next month. Im going to send out the request for production this week. Should I type out the request for production in the same format that you have provided? I can't seem to save your request for production paper where I can edit it.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      George,

      Study everything that I have provided on this site. Many people have won their cases, so take heart, study well, and here's hoping you hit it out of the park.

      These guys are in the business of selling and reselling these debts as if they genuinely owned them, then they intimidate people into paying. Read the article I posted from the New Yorker. It will open your eyes.

      In most small claims courts, the judge will not allow a request for production, but send it to the plaintiff anyway. It lets him know that you are not going to lay down and die without a tough fight. In some cases, you can convince the judge in the magisterial court to allow much of what you are asking for in the request for production, because you use the argument that this material is necessary for a proper defense.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Mikerios1g,

      Scroll down to the materials that were provided by Rodney Miner, and study them well. You will see a virtual parallel between your case and his, and he outlined the winning strategy that he used, so you will have nearly everything you need to use.

      Brian

      P.S. They probably paid less than $10 for this debt.

    • profile image

      George 

      2 months ago

      Right to the point--I am being sued for an old credit card debt. I have proof that three other collection agencies have attempted to collect on this same debt over the past two years by their mailings. Does that information benefit me in any way? How did it get passed around like that? Due to a rough financial patch, I've been through this once before and kind of caved too early the first time and agreed to a settlement out of ignorance. I am not so fearful this time and actually am really focused on beating this one. Also, is there a strategic time to send the Request for Production? Of course, I will answer the summons...but how quickly or slowly should I do the Request for Production? Absolutely awesome site!

    • profile image

      mikerios1g 

      2 months ago

      Hi,

      I live in Massachusetts, I was served and am being sued by Midland Funding and there lawyers are some law firm here in MA. I requested a request for production, the same thing you have above essentially. They sent me a stack of papers. A bunch of monthly statements with what appears to be purchases, the credit card companies agreement of terms/application (its just a regular copy no signature or anyhting) some affidavits that some person is the "legal specialist" for Midland Credit Management (MCM) and how they are trained and familiar with MCMs business records and what not. Then there is a bill of sale and assignment from the original creditors name to MHC Receivables, then another bill of sale and assignment from MHC receivables to Sherman Originator. An affidavt of sale of accounts, a certificate of conformity, and finally a bill of sale between sherman to midland funding and then one last paper with my name, the last 4 digits of an account number, my address with last payment date, last purchase date and amount, charge off balance and current balance.

      Not sure what my chances are at winning this court case. This is being handled in small claims court, court date is next week. Any help would be appreciated.

      I didn't see the original application with a signature, and the bill of sale goes from the orignal creditor to buyer 1, then sold from buyer 1 to buyer 2, then sold from buyer 2 to midland funding. The debt is for less than $1000.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      StarbucksLoverr,

      Good luck to you.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      John,

      If the judge granted the request for documentation, and the plaintiff did not supply it in a timely manner, usually within thirty days, then you have a right to ask for dismissal with prejudice. Plain and simple, they did not comply, they should lose the case. Stand on that principle strongly.

      If you need an argument, it would be this: they failed a court-ordered mandate to produce these necessary documents that are vital to your defense and your right to due process, and this indicates that they lacked this information when they filed suit, thus rendering their status as lacking legal standing to be in court. For the plaintiff to file suit in the first place, they are required to have sufficient proof in hand when they file suit, and lacking these documents shows clearly that they did not.

      Good luck to you,

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Monte,

      Scroll down to the information that I posted from Rodney MIner. You will see everything he did in virtually the same situation in which you now find yourself. Study his case and his winning strategy. You'll be glad you did.

      As for sending the request for validation, yes, that should have been done when you were first notified of their intent to collect. Instead, send them a request for production. And follow the Rodney Miner materials.

      Answer the summons. The 20 days is the time limit that the court has imposed for responding, so do not miss that deadline. If you have questions regarding the time elements for your case, contact the clerk of the court.

      Good luck to you,

      Brian

    • profile image

      StarbucksLoverr 

      2 months ago

      The original creditor doesn't have a signed contract either! Thank you for this article! :)

    • profile image

      john 

      2 months ago

      i have court next week. this is the second time first time they have a name juan gonzalez i am juan gonzalez jr and they did not know if it is mine or not but also i requested production and the judge only granted the request of all statement. After three months i have the court hearing again and did not receive any statements from them. what should i do?

    • profile image

      Monte 123 

      2 months ago

      Hello Brian

      What a fantastic job you have done outlining the step needed to win against these blood suckers.

      I have a couple of questions.

      i was served in person yesterday By Machol & J on behalf of Calvary SPV I,LLC

      I live in the State of WA. and the debt in question is a sizable amount (24K).

      The "Summons" has no court case number on it. Where the number should be it just states [SUMMONS (20 DAYS).]

      A little background. I did receive a letter from M & J back in June claiming the debt and intention to pursue collection activities. Under bad advice (I wish I had found this article sooner) I chose not to request validation of debt from them.

      This leads to the questions I have.

      1. Can I still request verification of debt as outlined in your article?

      2. Will this delayed request (now that I have been served) still hold the same Weight and be an important element of my fight?

      3. How do I proceed to file documents with the court when there is no case number assigned to it?

      I am hoping that yourself or others have dealt with this in the past and can lead me down the right path.

      Thanks again for such an amazing article and I look forward to your response.

      Sincerely,

      Monte

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Beth,

      If your only source of income is Social Security, that income is exempt and cannot be touched by these blood suckers.

      The request for production only goes to the plaintiff, not the judge.

      If you sent the plaintiff a request for validation within the thirty-day time limit from the date they notified you that they intended to collect a debt, then they should not have filed suit until they had satisfied the validation request. If this is the case, then let the judge know this, because the plaintiff acted prematurely in filing suit.

      They cannot take your car. They can only go after bank accounts that do not contain money from Social Security, or wages that are not Social Security. I think you are pretty much judgment safe, if all of your income in solely Social Security.

      Research all of the materials on my site, and try to follow the examples of others on here who have successfully won their cases. If nothing else, try to pay for a one-hour, private consultation with a good attorney. It will be money well spent.

      Brian

    • profile image

      Beth 

      2 months ago

      Hi I got served today 08/10/2018 Midland Financial is suing me. I send certified Mail the Answer to the court and the lawyer of Midland Financial LLC. I also send certified Mail the request for production cc to the judge and the Midland Financial lawyer. I had send them a Validation letter like a week ago before I got serve. What can I expect now? I am nerves because I am not that good in my English and I can afford a lawyer I live on Social Security only and have no property only a 1,000 car. Can they take my car is i loss the case? I will try to remember some of your statement but I know I will not remember all of stated words. What can you advice me please?

      Thank you,

      Beth

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Simone Coelho,

      It is true that the time to ask for validation of a debt is before being sued. But, when a person doesn't know this, and most people don't, even though it is mostly going to be challenged, I still say do it, because it is a shock tactic to the plaintiff. You want to use every tool that you have when you are dealing with these blood suckers.

      Once you are sued, you actually want to send a request for production, but most magisterial courts won't honor that request, either. Like the other request, I recommend it for the fact that it rattles the nerves of the plaintiff, and in some cases, they do respond with a flimsy attempt at answering. In such cases, their lack of evidence is helpful in the courtroom, proving that they lacked sufficient evidence to file suit in the first place, thus rendering them without legal standing.

      Brian

    • profile image

      Simone Coelho 

      2 months ago

      Hi Brian,

      Thanks for the reply. This debt company apparently bought a debt from Citibank. Today i received a lawsuit in California saying that Citibank had charged off the debt and they bought it.

      I was under the impression that I could only ask to validate the debt before they actually filed a lawsuit. I have never been contacted by this debt collector or by Citibank. I now have 30 days to respond to this lawsuit. Are you saying to ask them to validate the debt at the same time I am responding to the lawsuit, in parallel?

      Thanks!

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      SAC,

      If you are being sued by a junk debt buyer, you don't need to use the name of the original creditor when responding. Just use the name and address of the plaintiff.

      Send them a request for validation of the debt. Send it certified mail, return receipt requested. Give them thirty days to comply. If this makes it to court, be prepared to tell the judge why it is not your debt. Demand that the plaintiff show factual proof that verifies their claim.

      Good luck to you,

      Brian

    • profile image

      SAC 

      2 months ago

      Hi Brian,

      In your sample "Request for Production" the name of the plaintiff is identified as the credit card company. If the plaintiff is a debt collector that apparently bought a debt, not a credit card company, should I still use the credit card company name or should I substitute it for the debt collector agency?

      I am being sued for a debt that is not mine. Should I ask that they produce my social security number to compare with mine? I have perfect credit, there are no negative marks on my credit file from this credit card company. The debt is simply not mine and I got served at a different address than the last known address of the person that supposedly owes the debt. Any advice would be appreciated.

      Thanks. Simon

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Evan Combs,

      The issue is not whether or not you used a credit card, because showing purchases made by you on this account would suffice for that. But, what is really the issue is whether the plaintiff has a.) a binding contract between you and the plaintiff; b.) the plaintiff can prove the plaintiff has incurred damages, c.) the plaintiff can show that plaintiff has legal right of subrogation of the debt.

      Many of these blood suckers buy up a large batch of debts, tens of thousands at a time, and they have literally NO paperwork, no documentation, no trail of ownership, and they rely on fear to win.

      So, make them prove that they have a contract between you and them, make them show how they are damaged, and make them show legal right of subrogation of the debt.

      Ask them how they satisfied the debt to the original creditor ("first dollar" is the term). Put all of these items together, and make a strong defense.

      Keep the faith, make your demands, go for a win,

      Brian

    • profile image

      Evan Combs 

      2 months ago

      I went to court against Midland Funding.

      I go in front of the judge and I state that I filed a Request for Production and plaintiff has not given me any information. The judge tells me that he does not order discovery in his court. I then tell him that I am without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim.

      The Judge orders the plaintiff to hand over credit card bills and statements. I then asked for a continuance so that I may look over this information. Continuance was granted and I go back on Sept 4th

      For Alabama: there are no formal pleading or documentation rules applicable to debt buyers. However, most courts will not enter a judgment without proof of the original debt and a complete chain of title, reflecting each and every assignment from the original issuer of the account to the current plaintiff.The original debt is generally proved through copies of the original contract, the account application, or account statements. Assignments can often be proved with a bill of sale for each assignment, though a growing number of judges require proof that the debtor’s specific account was part of the portfolio of accounts assigned.

      There is no discovery and very limited motion practice. The Small Claims Court has its own rules, which in some instances differ from the Alabama Rules of Civil Procedure and the Alabama Rules of Evidence. In general, the rules of procedure and of evidence are relaxed in Small Claims Court.

      Moreover, Alabama courts have consistently rejected a consumer’s

      assertions, and implicit arguments, that the absence of a signature on a written contract, card member agreement, or other document nullifies his credit card obligations and permits him to purchase as many items as possible with complete impunity.

      Getting a bit worried now

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Beth,

      I outlined it for everyone in my article. Just use that model.

      Brian

    • profile image

      Beth 

      2 months ago

      Hi there thatnknu for all the information you posted. I need to find out how to find the form Request For production ?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Debbie Debbie,

      Congratulations! You did well, and you deserve to feel great. Time to celebrate.

      I doubt these blood suckers are coming back for more. You showed them that you were not going to lay down and play dead. Good for you!

      Isn't it sad to see all of those other people in that courtroom giving their hard-earned money to these creeps? Lining up like sheep to the slaughter, easy prey for these blood suckers. I'm glad you managed to escape that fate.

      Regarding the entries on your credit report, the original creditors can list these accounts, but the blood suckers who came after you cannot. Make sure that, if they have made any entries, they are told to remove them.

      Brian

    • profile image

      debbie debbie 

      2 months ago

      OMG! I have to THANK YOU for this article.

      I just went up against Midland Funding for $1300. and WON! (Sort of)

      I followed everything -Request for Production, hit them with the kitchen sink in my Grounds for Defense etc. Last week, I arrived in court, saw my name on docket even though I was well rehearsed in everything I read and what to say from your article, I still felt nervous. As I made my way to the courtroom, people were getting "deals" from their creditor lawyers so they didn't have to go to trial. For a moment I panicked and thought "where's my deal??" but nothing no one approached me. When my name was called Midlands attorney stood up and I started to walk to the judge when the lawyer said to dismiss it as a "non-suit". It was a relief. the attorney from the other side said they didn't have the evidence against me and that it was good I came to the court so I didn't get a judgment against me for a no show. I realize they have 6 months to refile but their attorney said they more than likely will not. Now that I relive it in head, I wonder if there was something I could have told the judge to dismiss it so that it couldn't be brought back into court. In any case, I am prepared to fight. Thank you for helping all of us with you articles and encouragement. Is there any way to get that debt off my credit bureaus?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      IJOP,

      It can be a last grasp at saving their pride after thus admitting that they cannot win, due to their lack of sufficient evidence. If they represented Capital One, then they would have access to sufficient evidence to win. "Sending it back" to Capital One says to me that they most likely never represented Capital One, and further, if they bought this at a junk debt auction, how do they "send it back?"

      I would be surprised if anything happens after this. If so, it would probably be somewhere down the road when some other junk debt buyer buys this and starts their game.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Lara815,

      Immediately send them a letter requesting validation of the debt. You will see a copy of how that is written, if you scroll down on my article to the additional materials section. Send it via certified mail, return receipt requested.

      Since you asked them for proof, they are most likely going to send you a bunch of useless garbage, which is why you want to send the formal request for validation of the debt. It is more demanding and totally legal.

      If they do not respond with a proper answer to the request for validation, you can use that in court and file a motion to compel. And if you are summonsed to court, yes, follow the information that my article gives. Many people have won their cases and posted how they did it, so study everything I have on here, including the many posts.

      Good luck to you,

      Brian

    • profile image

      IJOP 

      2 months ago

      I got a letter in the mail today from the junk debt collector after I sent them a validation letter. They informed me that they were closing my account and sending it back to Capital One. Have you heard of this before? I know that Capital One is known to take some of their accounts to court themselves so am I done for?

    • profile image

      Lara815 

      2 months ago

      Second Round on behalf of Synchrony bank sent me a letter from a law firm about a debt that i owe. Its 2 years almost 3 years old. I havent made a payment since 2016. They asked me how i would pay and i had to respond by phone or mail in 30 days. I called them and asked for proof of the debt. I was told they will mail it to me. If I'm given a summons, would using your advice help? Thank you.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Charles1969,

      They can only successfully serve you in the State of your current residence.

      Brian

    • profile image

      charles1969 

      2 months ago

      Thanks again Gray.

      So you are saying that even though I now live in a different state they can still serve me in the old state successfully?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Charles1969,

      Return of service means that they have notified the court that they were unable to serve you at this address. It does not mean that they have given up trying to find you. They could give up, or they could keep on trying to find you. It is best to fight, not run away and hide. Avoiding these blood suckers is only feeding their fire. If they cannot serve you at this other address, they may attempt to "serve by publication," or some other means, such as hiring someone to locate you. Hiding and hoping that they will go away is gambling that they give up, and you never have to face this fight. But, my opinion is to arm yourself with knowledge, roll your sleeves up, and give it to 'em. You definitely do not want to wake up one morning and find that they successfully stood before a judge without you present and got a default judgment.

      Brian

    • profile image

      charles1969 

      2 months ago

      Thanks Brian,

      Today online the county posted a document that stated "Return of Non-Service" Stating that after one attempt that the summons could not be delivered... What exactly does this mean? I have been unable to find anything online about this using the same wording.

      Thank you.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Charles1969,

      In my opinion, you should fight any case in the venue closest to your current address.

      Brian

    • profile image

      charles1969 

      2 months ago

      Brian Gray, great webpage, thanks for doing it.

      I am aware that I have been sued by the Credit Card Bank, only because I have received solicitations for representation in the matter. I have not been served as of this time.

      I no longer actually reside in the county/state where the Bank's attorneys are trying to sue me. They are trying to serve it at a mail drop box address I still use in FL. I am currently in NJ.

      Which state is best to fight this in? Bankruptcy is NOT an option so FL bankruptcy law would not be helpful.

      (note: i asked a shorter version of this in the Q&A section above)

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Const Mgr,

      Looks like you covered all the bases. That will cause them some heartburn.

      Good luck to you,

      Brian

    • profile image

      Const Mgr 

      2 months ago

      I got served by Gurstel Law in behalf of Capital One.

      The General Allegations-

      list only my Wife by name and me as J. Doe. Most of the allegations were variations of if we married or not married at the time of the debt. Guess they are trying to cover their bases.

      Breach of Contract-

      States that the defendant applied for a revolving credit card.

      There are no dates or account numbers

      Plaintiff states that we owe the sum of $1,882.32

      Account Stated-

      Plaintiff made rendered to Defendant invoices and statements.

      A full , just and true account as made which showed a balance of $1,882.32

      Wherefore, etc etc.

      No attachments whatsoever, no copies of anything... just an allegation of a debt of $1,882.31

      I have to answer this by Monday, so I just made my answers the usual "2. 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."

      and then asked that the The plaintiff is not entitled to judgment because:

      1.Plaintiff's complaint fails to allege a valid assignment.

      2.Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

      3.Plaintiff has failed to state a claim upon which relief may be granted.

      4.Defendant claims Accord and Satisfaction

      5.Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

      6.Insufficient specificity in a pleading.

      7.Defendant cites Failure of Consideration whereas no exchange of money or goods occurred between the plaintiff and the defendant.

      8.Plaintiff is not named in any alleged agreement that is purported to have been entered into between Defendant and Plaintiff.

      9.Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff

      10.Defendant invokes the Doctrine of Laches

      11.Plaintiff's complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing.

      12.Defendant invokes the Doctrine of Subrogation.

      13.Defendant invokes Scienti et volenti non fit injuria.

      14.Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      CamelJockey79,

      Any number of reasons, such as trying to intimidate you, wear you down, or just wishful thinking, but they are usually smart enough not to.

      Brian

    • profile image

      CamelJockey79 

      2 months ago

      but why would they reopen it again to begin with, after dismissing it?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      CamelJockey79,

      Congratulations! Diligence and study paid off well. I am happy for your win.

      Dismissal without prejudice means that they can come back within a limited time frame, but usually, these lawyers just like to get dismissal without prejudice to save face. I would have motioned the court for a dismissal with prejudice, but, sometimes, you just take victory any way you can get it.

      Ask the judge how much time the plaintiff has to reopen the case. That should set your mind at ease. Usually, it is 30 days.

      As for credit reporting agencies, they report the original write-off by your original creditor, but if they are reporting an entry made by the plaintiff, the plaintiff should be required to remove their entry.

      Brian

    • profile image

      CamelJockey79 

      2 months ago

      Hey Brian! So I have great news. My situation has been going on since October 2017. In case you forgot my story, I was sued by Calvary for a credit card debt they bought from Citibank. After several court appearances, and diligently following your advice, I had the bench trial set for today and was ready to present my case on why I do not owe Calvary any money.

      So I get to court today, and Calvary's lawyer lets me know that the case was dismissed without prejudice!

      I am very happy about this and thankful for all of your help. But when a case is dismissed without prejudice, doesn't that mean that they can sue me again later on? Since the case was dismissed, can I request it be taken off of my credit report?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      ElPorro,

      The clerk of the court has advised you correctly. Send the letter to the court the way the clerk advised you to, and it will be given to the judge who is assigned your case.

      It is a difficult task to fight this solely on the fact that it was served on a family member at your former address, because, eventually, the correct address gets on the records, and you get served properly. However, it is still something to point out as sloppy record keeping by the plaintiff. If they can't even get your address right, what else have they gotten wrong? Nonetheless, I always advise fighting them rather than running away. Ignoring this summons just because it went to the wrong address is just postponing the inevitable. Study, and go after them hard. Fight to win.

      Yes, you may as well take your letter of extenuating circumstances to the clerk of the court in person. Try to build a little rapport with the clerk so that the clerk thinks of you as someone who is honest, upstanding and courteous. That goes a long ways.

      Go ahead and send a request for production to the plaintiff. It lets them know that you are not running away, and that you are going to make it difficult for them.

      Brian

    • profile image

      ElPorro 

      2 months ago

      Brian,

      Thank you for you feedback. I just want to clarify that my old address from 10 years ago is in the same city in which I currently reside. Should I still mention in my letter that I was improperly served? I just saw on an additional page to the warrant that stated "Delivered to a family member age 16or older..." However, nothing is checked off of that nature. It has a signature that a copy was mailed to the address therein. It's basically a page showing how it was served and giving instructions of objection to venue. The case would be heard in the same venue as my old address anyway.

      Also, since I am briefly in town, would it be better for me to take my letter of extenuating circumstances directly to the clerk's office and get a stamped receipt rather than send it through certified mail? The clerk told me on the phone that I couldn't send to a judge because they don't know who will be in that courtroom on that date. She said send the letter to the courtroom stated which makes me nervous that it isn't directed to someone.

      Lastly, if the judge accepts my extenuating circumstance letter, would he/she set another return date for me to dispute or just set a trial date? Should I request the Bill of Particulars now or wait for the trial date to be set? Is this original date on the warrant just for me to state that l'm defending myself and want to go to trial? Under the section where it states I must appear to dispute, there are two lines underneath. One stating: Bill of Particulars...ordered...due. The second: Grounds of Defense...ordered...due. Is that something they would determine on the first date in which I'm requesting a trial?

      I have read a lot of the article already and may have confused myself a bit.

      Thanks for you help

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Jan,

      I am puzzled as to why you would be receiving a "second" summons. Nevertheless, contact the clerk of the court and ask them what is the actual status of all of this. It should be simply that you are being sued, and a court date being set. If a court date has been set, notify the court that you intend to appear.

      Meanwhile, nothing they have sent you proves their case. It sounds typical of these blood suckers to buy a huge batch of bad debts, along with little or no evidence, and then they come after you with every scare tactic possible hoping that you will just fold. Once again, what they have sent you proves nothing.

      Further, you sent a letter requesting verification of the debt. If they did not satisfy that request sufficiently and within 30 days of receiving the request, they are improper in going forward with a suit. Research all of the requirements for proper satisfaction of a letter requesting verification of a credit card debt.

      Also, research the statute of limitations in your State. Make sure that this is not time barred.

      Good luck to you,

      Brian

    • profile image

      Jan 

      2 months ago

      Hello Brian,

      I enjoy reading your blog, and was wondering if I could pick your

      brain for a situation I recently found myself in.

      I am located in Michigan. About four an half years ago I received a

      collection notice from an Attorney. I then sent a verification letter. After a few months, I received a collection letter from different Attorney firm. I then sent another verification letter. I thought this was over until now.

      I recently had a Summons and Compliant taped to my front door by the Sheriffs Department. In this order, the papers consist of, (1) Second Summons and Complaint (stamped). (2) Order Regarding Alternate Service. (3) Second Summons and Complaint (copy). (4) Motion For Second Summons And Order. (5) A Military Service Affidavit. (6) 2 Credit card Statements from five years ago.

      There is no Complaint in the pack of papers, so I have no idea how to answer this. I am wondering, with all time that they have been trying to serve the papers, somewhere along the way, maybe even the courts, the complaint was missed, or forgotten. I have been looking online, and see where some Attorneys say to call the Plaintiff's Attorney or the courts and ask. Is it only mine, that is

      missing the Complaint.

      It doesn't seem like I should have to be calling around to find the Complaint.

      All the papers say Plaintiff's name B.O.A. n.a.

      I am lost on this one, could you PLEASE help.

      Thank you.

      Jan

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 months ago from Pennsylvania

      ElPorro,

      Send a letter to the judge and court specified by the clerk of the court. Send it immediately and by certified mail, return receipt requested. This is proof that you replied in a timely manner, and you might need it later.

      In the letter, state that you have not been properly served, tell the court what your correct address is, state that you wish to defend yourself in court, and that this case should be heard in the venue of your current address.

      Explain to the judge why you cannot be there in person. These are called extenuating, or mitigating, circumstances. I think any reasonable judge should rule that anything less than moving your case to the venue of your address would be improperly prejudicing things in the favor of the plaintiff.

      Once you get a trial date in a court that is located near you, study my article, the posted additional materials, and especially research the many posts on here from people who outlined their winning strategies.

      Good luck to you,

      Brian

    • profile image

      ElPorro 

      3 months ago

      Hello Brian,

      Thank you for such an informative article. I have a few concerns with my case. I live in Virginia and I received a warrant in debt from Cavalry SPV I, LLC (assignee of Citibank). This is for a Best Buy credit card. The attorney's office/Plaintiff is in Rockville, Maryland. It was sent by 1st class mail on 6/26/18 but I received it late because I haven't resided at that address in 10 years. A family member lives there and held it for me. She said the Sheriff put one on the door about a week after that.

      The Affidavit of claim that is attached to this warrant is signed by an attorney in Weschester, NY. That document heads with State of NY County of Westchester VS. my name. This affidavit states that the account was purchased in March 2018 from Citibank, yet it was charged off in 2016. The only other supporting documents are a statement from 2015 and one from May 2016 that don't show what was purchased in my name...only late fees. A bill of sale is included with Exhibit 1/1(A)of a bulk sale.

      I live in Norfolk, VA. There is no Best Buy in Norfolk. The closest Best Buy to me would be in Virginia Beach. Should they have filed this in Virginia Beach courts instead of Norfolk?

      I will be out of the state for a mandatory training on the court date set. If I can't make this training, I will lose my position because I already had to postpone my training by a month due to my child being really ill and in hospital. Therefore, I will be unemployed again. They did not give me a time in which to provide an answer. The warrant in debt just states "To dispute this claim, you MUST appear on the return date for the judge to set another date for trial." I want a trial but I CANNOT miss a single day of this training. I called the clerk and she said I could write a letter to the judge but no judge is mentioned on the warrant, only a court room. She said the judge wouldn't even see my letter until the case is called that day. Do you have any suggestions for me?

      Thanks

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 months ago from Pennsylvania

      Marie,

      It doesn't pay to keep trying to avoid these blood suckers. They won't stop until they have their court date, then they hope that they have scared you sufficiently that you won't show up, thus giving them a free win. Make them fight for it, and more so, try to beat them.

      You could fight them on the technicality that they have not properly served you, but that would just lead them to find you with the help of the court, and you would be right back at the starting point. My best advice would be to contact the clerk of the court, and let them know that you intend to be present for any trial. Then study my article, study the following materials that I have posted, and study the many posts on here for the free information on how others took on these same blood suckers and beat them.

      Good luck to you,

      Brian

    • profile image

      Marie 

      3 months ago

      Today I searched online resources for an unrelated case and discovered that

      Midland Funding is suing me. ( silent screams) . They have been trying to serve me ( at old addresses) for about a year now but I was never served .On the courts website I notice that there is a date scheduled

      For the 30th of this month ,which is only 6 day away ,

      how do you recommend I move forward?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 months ago from Pennsylvania

      Staci,

      You should attend this trial setting conference, because this is when the plaintiff asks the judge to set a trial date, and you may want to suggest dates that are suitable for you.

      Contact the clerk of the court and ask them what you need to do to comply with attending this trial setting conference.

      Your request for production always goes to the plaintiff.

      Brian

    • profile image

      Staci 

      3 months ago

      Thank you Brian - so helpful ... and one more question. I realized that what I received is not a summons. It was delivered by regular mail and it's PLAINTIFF'S NOTICE OF TRIAL SETTING CONFERENCE. It seems to be a notification but it does not ask me to appear. It gives me department and the court address but no judge.

      Do I send the notice that I am representing myself and the "Request for Production" there, or is this not the actual court date and what do I do relating to this letter?

      Thanks so much for your assistance!! It's so foreign to me!

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 months ago from Pennsylvania

      IJOP,

      If you have not been served a summons to court, you will need to wait until the summons arrives. I was under the impression that you had already been served.

      Nonetheless, if the junk debt buyer indicated that they had filed suit, and you then sent them a request for production, I think you still have a chance to ask for dismissal based on their lack of response to your interrogatory.

      Brian

    • profile image

      IJOP 

      3 months ago

      Brian,

      I sent the validation letter to the junk debt buyer before being served so I don't know which court to write to. I would need to wait until I am served, correct?

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