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You Can Beat Credit Card Debt Collectors

Updated on October 22, 2017
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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. 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. 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 can attempt any further to collect this debt. Your collection company knows this, yet they are still trying to take you to court, because they know that if you do not show up, the law then reverses everything, and you end up owing them. So, go to court. Just the fact that you file an intent to defend yourself lets them know that you are aware of your rights, that their best bet is to call off the bluff, and that they should go find some other person to try to fool into entering a contract with them for a debt that is otherwise uncollectible.

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.

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.

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.

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.

Rules Vary, But the General Principle Doesn't

Research the rules pertinent to this in your State, since the rules do vary from State to State. However, do not forget the most valuable tool, and that is to request proof of the plaintiff's legal right of subrogation of the debt. In the vast majority of cases, these out-of-control blood suckers do NOT have legal right of subrogation of the debt, and it is illegal for them to pursue it. So research the term "subrogation of debt," understand how it operates so that you can argue your point, and by all means, send a request for proof of legal right of subrogation of the alleged debt to the plaintiff as soon as possible.

Letter Requesting Validation of Debt

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.

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    • profile image

      Anonymous752 39 seconds ago

      Brian,

      Can I email you? I know that's not your preferred method, but I'd rather not put my request on this thread.

      Thanks.

    • profile image

      CourtneHauser 25 minutes ago

      Ok going back through all of this for the warrant in debt. We a letter back in February from Alltran Financial LP. Sent a debt validation letter and received nothing until a letter dated July 24 from Scott & Associates PC that was not received until early August. Sent a debt validation letter dated 8/17 got a letter back from Scott & Associates PC with no date on it that states they are filing a warrant in debt. The date to which it is signed has been whited out and 9/18 has been put in it since they received on 9/19. The funny thing is the only thing that is whited out is the actual day part, (ie changed to the 18th) but the rest of the date is typed out. On 9/27 filed a complaint since this is past the 30 days and they are obviously doing shady business with the CFPB. The letter attached to this complaint that is sent directly to Scott & Associates states that I am requesting validation of hte debt along with any right they have to collect on this. The copy of the Warrant in debt they sent states court hearting is Nov 7. However once it was taped to my door it states 11/14 and has been scratched out with a blue pen and it was not received in the courts until 9/22. Called the court to confirm and it is actually the 14th of November. After filing the complaint they sent a letter that they dated 9/25 stating they have verified the debt and sent copies of statements. A few days later received a letter from them also dated 9/25 stating they have received notification of a dispute an that they need more information.

      What should my next step be in this process?

      I beat Midland funding and never had to go to court as they withdrew everything and I am trying to get these people to do the same. Their response to the CFPB was stating Federal Trade Commission FTC stated taht 15 U.S.C. 1692g(b). This is stating when it is intended to assist a consumer when a debt collector inadvertently contacts the wrong consumer at the start of his collection efforts. then goes on to to say FDCPA 53 Fed Reg. 250097, 50108-09 The Courts have adopted a similar interpretation stating Verification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed. The debt collector is not required to keep detailed files of the alleged debt. It is only intended to eliminate pursuing the wrong consumer.

    • profile image

      Anonymous752 26 hours ago

      VRSL,

      What ever happened to your innocent until proven guilty?! You try to have a debt collector prove the debt is yours, but yet you have to jump through hoops to get them to do it! I can request discovery without leave of the court and I intend on doing so... it's a real shame that they just wouldn't answer the request for validation! I get they techanically don't have too, but I guess it's easier for them to assume they'll get a judgement against me, or I won't show up to court prepared, so why waste their time.

    • Hanavee profile image
      Author

      Brian Gray 32 hours ago from Pennsylvania

      Mark,

      When you argued your defense in the magisterial court level, and it was dismissed, they used their money power and appealed to the next higher level. At this level of court proceedings, you absolutely need an attorney, because the legal complexities are much more demanding and intricate than at the lower magisterial court level. If this case was recent, you might want to contact an attorney to file an appeal. This is something that only a local attorney could advise you on, but there are time limits, so, hopefully, you are not past them.

      Regarding the ones were you were never served, check with the court to see what they need to file a motion to set aside the judgment and order a new trial. You will be asked your reasoning, and that will be that you were never properly served.

      One nuclear option in cases like this is to declare bankruptcy, if it is feasible, since this wipes out all those debts instantly. The upside is being debt free; the downside is that this sits on your credit report for ten years.

      Good luck to you,

      Brian

    • Hanavee profile image
      Author

      Brian Gray 32 hours ago from Pennsylvania

      Jennifer Rose,

      I am not sure that i understand you correctly. A motion to dismiss a debt?

      Brian

    • profile image

      VRSL 37 hours ago

      Anonymous752, if your court rules allow you to provide an answer that states you lack knowledge, there should be no failure on your part to comply. However, read what your rules of civil procedure say about responding to a complaint. If necessary, you should be able to amend your answer.

      They have no obligation to respond to your validation request once you've been sued.

      I don't know in which state you're located, but some states have very specific rules regarding the documentation (such as an affidavit) that must be included with a summons and complaint. Research those rules.

      In addition, study your court rules regarding discovery requests. Research court rulings in your state in order to determine what a plaintiff must prove for a particular cause of action. Address your discovery requests accordingly.

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      Mark 39 hours ago

      Could you give any advice on how to get judgments set aside. I have 3 But to the best of my knowledge I was only sued twice. Once was in small claims court and i got it dismissed the case dismissed because I kept saying I can't be sure if the debt is mine do you have a contract with my signature. Then they appealed to state court and I didn't know how to answer the law suit so i didn't go and lost by default. The other times I don't think i was ever served.

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      Jennifer Rose 40 hours ago

      Do you have a sample letter on a motion to dismiss a debt?

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      Brian Gray 3 days ago from Pennsylvania

      Curious,

      My personal opinion is that several things would have to happen first, and they would be: a judgment in court against you for a past unpaid debt, and the right granted to the debt collector for garnishment of wages or bank accounts. If this were true, then maybe the debt collector could garnish money that would come from the sale of the property. To my knowledge, property cannot be attached, but maybe the proceeds from the sale of this property can.

      My best advice is to ask a local attorney, because there may be some local laws and conventions of which I am not familiar.

      Brian

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      Curious matter in Virginia 3 days ago

      While in the process of selling some land a title search is being down by a potential buyer. We recently heard from our realtor. She advised us that the title would not clear because we owed some past medical bills. I've never heard of such a thing and I'm wondering if a collections company somehow applied for and was granted a lien on the land without notifying us of any hearings on the matter. I'm curious as to what your opinion might be on this matter. Thanks.

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      Brian Gray 3 days ago from Pennsylvania

      Anonymous752,

      You are right, they have the nerve. They can reserve the right all they want to, but that answer you gave them is from the best legal minds around, so they can bluff and huff, it still stands all of the legal tests of validity.

      Stay the course, study well, and fight a good fight. Here's hoping that you win.

      Brian

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      Anonymous752 3 days ago

      Brian,

      I received my summons, filed my answer, sent the plaintiff a request for validation, 30 days later no answer (surprise, surprise). Have pretrial conference in a few weeks. Received pretrial answer from plaintiff (robo signed), they had the nerve to put that they reserve the right to file a motion to strike the answer to the complaint for "failure to comply" because my answer was "defendant lacks knowledge". They have yet to provide me with any significant documentation. This is FRUSTRATING!

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      Brian Gray 6 days ago from Pennsylvania

      Benjamin,

      Congratulations on your success! And thank you for sharing the results.

      Brian

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      Benjamin 6 days ago

      I came across this website last week because I needed information on how to fight a debt collector. All I can say is THANK YOU SO MUCH. The hearing was today and I followed your instructions religiously and guess what? the case was dismissed. The plaintiff attorney wanted us to have some kind of settlement but I stuck to my guns that I need it to go to trial. It is unfortunate that there are so many people out there who do not know their rights and how I wish they could get the information that they need.

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      Brian Gray 6 days ago from Pennsylvania

      CamelJockey79,

      There are good lawyers out there who solicit business ethically when people are in your situation, and there is nothing wrong with them contacting you in such cases. I would recommend hearing them out, see what their rates are, and if you can afford them (and they say that they can win your case), take them up on their offer.

      Other than that, once you are served with the court summons, sign and return it immediately, and notify the court that you will be in attendance.

      Can you get a delay? Yes, but I would recommend speaking to that lawyer first to see what a good strategy might be.

      Brian

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      Brian Gray 6 days ago from Pennsylvania

      CourtneHauser,

      A warrant in debt means that the plaintiff is suing you in court for what they claim you owe. While the plaintiff may not yet have to respond to your request legally, sending them the request lets them know that you intend to fight them on solid legal grounds. It sends a message that may cause them to re-think their pursuit. However, if they are still going to show up in court and take their chances, you need to be ready for them with your defense strategy.

      Follow the points in my article, and also, be ready to ask them to show that they have legal right of subrogation of the debt. Study this terminology so that you can speak with confidence and authority.

      If you sent them a request for validation of the debt, or any other such request, and you have heard nothing back from them, by all means, show this effort to the judge. It helps show the judge that you are not a lawyer, but that you are trying to do the right things. It buys you a little more leniency where needed.

      Brian

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      CamelJockey79 10 days ago

      A couple of days ago I received a letter in the mail for an advertisement from a lawyer, which says "Missouri court files reveal that you have recently been sued for an alleged credit card debt". I had no idea that I was being sued so I looked up my name on the Missouri case net website and see that Calvary Portfolio Services is suing me and I have a hearing scheduled for November 8th. How can they schedule a court hearing and not let me know?

      I did rack up quite a bit of credit card debt after getting laid off from my job and was unable to pay it, and I know Cavalry did buy my debt from Wells Fargo and have been trying to collect from me. My court hearing is scheduled for November 8th. Can someone advise me on what I should do? Is it possible to go to the courthouse and postpone it, telling them that I was unaware of this and only found out because of the lawyer's letter that I received in the mail?

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      CourtneHauser 10 days ago

      We haven't been to court yet. They have filed to have a warrant in debt issued. This was the response the attorney sent to us in regards to a letter that was sent after receiving the information of intent to sue.

      My question do i send another letter to them again requesting the information and take all of that with us when we go to court for the warrant in debt to be issued?

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      Brian Gray 10 days ago from Pennsylvania

      CourtneHauser,

      I am intrigued that this court is adopting that interpretation. I strongly disagree with them, and I would recommend finding an attorney who has fought these issues and has a track record of winning. Trying to get the judge in this type of court system to see the error of his ways is futile without quality legal counsel.

      The FDCPA is very clear on this matter, and it seems to me that this judge, or this court, is circumventing the law.

      Brian

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      Brian Gray 10 days ago from Pennsylvania

      Chaos1960,

      Congratulations! Time to celebrate, and thanks for sharing the good news.

      Brian

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      CourtneHauser 11 days ago

      A family member or mine has been sued to appear in court to have a warrant in debt issued? This was not at all how mine was done as I just received the warrant in debt and a court time to show up to request a trial. However he did file a complaint and also sent the letter that you have on this thread requesting the information and the response that was given in the complaint was they quoted the FTC stated taht 15 U.S.C. 1692g(b). This is stating when it is intended to assist a consumer when a debt collector inadvertently contacts the wrong consumer at the start of his collection efforts. then goes on to to say FDCPA 53 Fed Reg. 250097, 50108-09 The Courts have adopted a similar interpretation stating Verification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed. The debt collector is not required to keep detailed files of the alleged debt. It is only intended to eliminate pursuing the wrong consumer.

      The original creditor was Credit One bank then sent to Alltran Financial then to LVNV Funding and being pursued by Scott Parnell & Associates PC.

      Any suggestions

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      chaos1960 11 days ago

      I win, I win, I Win. Thank you hub pages. After 6 1/2 years of misery, I won. Many, many tactics were used that I learned from your site. I hammered Absolute Recovery Services relentlessly for 4 years and they could not keep up. They refused my requests via court orders and finally made the mistake of sending me a letter using a fictitious sister company. Blatant violation of the FDCPA. The case then laid dead for two years and in Pennsylvania, it is purged. The judge put the foot down and ruled in favor of my dismissal request. Thank you again Hubpages. As for Absolute Recovery Services........i may not be done with you clowns !!

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      Brian Gray 11 days ago from Pennsylvania

      VRSL,

      I know it would be too many posts to read to see this, but I have often stated the bedrock of law, i.e., the burden of proof rests upon the plaintiff. As such, I have always recommended that people who are defending themselves remember not to accuse the plaintiff of violating the rules of subrogation of debt, but request proof that this was not violated, so as to remain on the defendant side of the argument. At no time have I advised that a defendant use this as an assertive claim, but to word their requests so that they thus leave the burden to prove it on the backs of the junk debt buyer.

      I will be away for a few days, but some time next week, I will try to do some better research on this topic and report back to everyone here.

      Brian

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      VRSL 11 days ago

      Anonymous752,

      You're referring to a failure to prosecute (lack of prosecution). That depends upon your court rules.

      Those rules should state how long a lawsuit can remain inactive or dormant before such a dismissal is allowed.

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      VRSL 11 days ago

      Brian,

      I understand your position and agree with you. If a junk debt buyer is counting on a default judgment, a letter could indicate that the consumer is going to pursue a defense. However, we must make sure that consumer defendants understand that they must file an answer to a complaint if they've been sued and that a letter requesting validation is not the same as an answer to a complaint.

      Once a consumer has filed an answer (and sends a letter if he so chooses), some lazy law firms may dismiss the collection action because they are simply looking for a default judgment.

      But in the event a consumer who has been sued and sends a letter requesting validation after receiving a summons and complaint, he must understand that the opposing party does not have to respond to his request.

      In regard to subrogation of debt, I agree with you. If a debt has been paid by an insurance company, only that insurance company has the right to sue for that debt.

      However, as I previously stated, subrogation of a credit card debt makes no sense financially. It makes much more sense for a credit card company to "charge off" a defaulted account and write it off as a loss.

      Do you have any court precedent for consumer credit card debt and subrogation? There are noted consumer defense attorneys such as Edelman and Combs, Philip Stern, and Jerry Jarzombek who regularly defend and advocate for consumers. There are numerous court rulings in which those attorneys defended consumers yet, in none of those rulings, did those attorneys raise the issue of subrogation.

      As I also previously stated, if subrogation is raised an affirmative defense, it is the defendant's burden to prove his defense.

      If I'm not mistaken, I believe you're from Pennsylvania. Here's what your court has to say regarding affirmative defenses:

      A defendant asserting an affirmative defense has the burden of proof as to that affirmative defense. Sabella v. Appalachian Dev. Corp., 103 A.3d 83, 93 (Pa. 2014).

      It is hopeful that merely asserting the defense will cause a debt buyer dismiss its claim. But in the event the debt denies that the debt was paid by an insurer, the burden of proof falls upon the defendant to prove his defense. I'm not sure how many defendants are up to that task.

      But, again, if it's a valid defense, why do well-known consumer attorneys not raise that issue?

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      Brian Gray 11 days ago from Pennsylvania

      Richard,

      Good eye on that typo. I will be away until next Monday, so I will fix that when I get back.

      Thanks again,

      Brian

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      Richard West 12 days ago

      Not sure if it's been pointed out, but in you're "Letter Requesting Validation of Debt" at the very end of this article, you are suggesting we state "I will "not" pursue legal action" against the credit bureau's if negative marks are found on our credit reports.

      I'd imagine the reader would want to eliminate the word "not" here correct?

      This is right around the middle of the "Letter Requesting Validation of Debt"

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      Brian Gray 2 weeks ago from Pennsylvania

      VRSL,

      While this is mostly correct, I still advise people to take the initiative of sending letters of request early on in such situations, because it signals the junk debt buyers that their target will not be an easy prey for their reprehensible actions, and it lets the junk debt buyer know that they are not just going to sweep into court and get an uncontested default judgment to line their filthy pockets, because the defendant is going to show up and put up an intelligent and contesting fight. Any early action on the part of the defendant lets the plaintiff know that they have stuck their hand in a live hornets nest.

      For legality sake, they can always resubmit the action later if contested, but it does show the judge that the defendant, who is not a lawyer, is attempting in good faith to get legitimate answers, and no judge is going to overlook that factor.

      Brian

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      Anonymous752 2 weeks ago

      VRSL,

      So if it's been over 6 months and it's just sitting there open, can you file a motion for dismissal?

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      VRSL 2 weeks ago

      Anonymous752, you stated:

      "I looked up my name on the courts website and found it, but I have not been served so I have not received a summons and complaint. Having found it, I submitted request for validation. "

      Courts have ruled that discovering an entry by a debt collector on one's credit report is NOT an initial communication that triggers the right to request validation. (See 1692g) The reason is because it's not a communication directly WITH the consumer.

      The same would apply if a consumer discovers via a court website that a lawsuit has been filed against him.

      It's ok that you sent a validation request, but be aware that the collector does not have to respond to your request.

      I would suggest that you study your court's rules of civil procedure. There is usually a time limit between the filing of a lawsuit and the service of the complaint.

      For example, a particular court's rule may state a summons and complaint must be served upon the defendant within 6 months of the filing of the complaint.

      Find out your court's rule regarding filing and service of the complaint.

    • Hanavee profile image
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      Brian Gray 2 weeks ago from Pennsylvania

      DW,

      My best advice is always to hire an attorney, because one who is routinely involved in such cases should be able to win it for you. Some of the strategies would be to use all of the points in my article, and rely heavily on researching their lack of legal right of subrogation of the debt. That is their Achilles heel.

      Regardless of the State, the laws, with the exception of statutes of limitation, are virtually the same from State to State.

      Brian

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      Brian Gray 2 weeks ago from Pennsylvania

      Durriyyah Leonard,

      If you can show that you were either served a summons improperly, or not served at all, these would be compelling reasons to set a judgment aside and allow for a new trial. Your attorney will know this, and he may have other options, as well.

      He may also have no other option but to file an appeal. Once your attorney knows all the facts, he can advise you better.

      Brian

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      DW 2 weeks ago

      Served with summons from law firm for credit card debt. They are a collection law firm. Their exhibits were my last 7 months of statements and an online application with my information. No signature though! I called to try and settle but law firm was extremely rude. Any chance to beat this? State is Virginia and in Circuit Court due to amount of $30k.

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      Durriyyah Leonard 2 weeks ago

      Ok so I am taking your advise and hiring a lawyer and hope they can help me. Just a question around reasonable reason the judge will re-open the case due to not showing up in court?

    • Hanavee profile image
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      Brian Gray 2 weeks ago from Pennsylvania

      Brian,

      You don't want to waste valuable time avoiding what you have to do. The summons is issued by the court. Immediately send the reply back to the court stating that you intend to appear and defend yourself, because you have a date set by the court as a time limit in which to respond. Once that is done, I would send two separate requests to the plaintiff. One would be for validation of the debt. The other would be a request that they furnish proof of legal right of subrogation of the debt. Send these certified mail, return receipt requested, and give them thirty days to respond.

      Study the legal ramifications of validation of the debt, and especially study the entire area regarding the phrase "legal proof of subrogation of the debt" with regard to credit card debts purchased by third parties. There is much information right here on the many posts that have succeeded in winning their cases and posting their strategies, so study well, and win.

      Brian

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      Brian 2 weeks ago

      Hi, I was served via registered mail from a law firm claiming to represent capital one. I wasn't home on the delivery date and the letter is still at the post office.I checked the clerk of courts website and the court papers stated I must answer" within twenty-eight (28) days after service of this summon on you, exclusive of the day of service. " I live in Ohio. The summons/ service paper was printed by the court on 9/13. Do I have 28 days from 9/13 or 9/14 to submit a answer to the plaintif attorney and send an answer to file with the court? Also, will your"request for production" filing work if the attorney is representing capital one. the filing had a regular past due capital one statement from 2016 attached. thanks!

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      Brian Gray 2 weeks ago from Pennsylvania

      Cynthia Moten,

      Unfortunately, it is possible for people to engage in a contract without signing a physical piece of paper, and this loophole is exploited to the maximum by debt buyers. But, if you read the full Fair Debt Collection Practices Act, you will see that the debt collector is required to produce ample proof for their claims.

      Brian

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      Cynthia Moten 2 weeks ago

      Ok thank you Brian, I will see about doing the one hour consultation. I have placed fraud alerts on all 3 credit reports. Barclays has provided me with statements and most of the transactions I see are coming from around where I used to live! They even had my drivers license (which is included in my police report as being missing previously). That's the creepy part. Is there not anything governing consumers against creditors in this situation? Do you know where I can find the statute about how there needs to be a signed contract with original creditors, or has this phased out somehow?

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      Brian Gray 2 weeks ago from Pennsylvania

      Cynthia Moten,

      If I am following you correctly, someone fraudulently opened an account in your name, this account was completely unknown to you, the account accrued debt, and once you were informed of this identity theft, the original creditor, Barclays, sold the debt to a collection company. For their rep to threaten you with intimidation is morally reprehensible and legally a slippery slope for them, not you.

      Personally, in my legal arguments, I would include the tactic of having them validate the sum of the debt by showing where and when each purchase on that card was made, then showing how it would have been impossible for you to have been in that location at that time, or to have purchased said articles. For example, the perpetrator may have purchased cigarettes in a city far away from where you live and work on a day and time when you were at work...and you don't even smoke! Catch my drift?

      It sounds to me like Barclays has engaged in fraud, and for this very reason, I would try to retain a private lawyer to sue them. Fraud, in this case, is for Barclays to have been notified by you that this was identity theft (and you would need proof that you did notify them of this), then for Barclays to sell the debt as if you owed it.

      If you cannot hire an attorney, then try to pay for a one-hour, private consultation with one. They will give you the best advice for your location. Still, fraud is fraud, and if Barclays engaged in such, this is a crime that is not limited in it ability to be prosecuted to just one locale.

      If you are going to represent yourself, here is some information that may be helpful:

      https://www.transunion.com/fraud-victim-resource/f...

      If it were me, I would sue Barclays for knowingly and willingly illegally selling a bad debt, knowingly and willingly attempting to indenture you to another company, and knowingly and willingly ruining your credit.

      Good luck to you,

      Brian

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      Cynthia Moten 2 weeks ago

      Hello,

      I have a few questions. I may be on the wrong thread but what if the situation is a Plaintiff (self) vs Defendant- Original Creditor (Barclays Bank Delaware)? Do these same rules apply? If not, where can I go to gather information in preparation for my pending lawsuit I have against them? Basically, I was a victim of ID theft a few years ago and there was a Priceline Visa card opened in my name. There were charges, phone calls, even alleged activation from my phone (which I am still waiting this lawyer to send me the records of such) that was supposedly done on my behalf. Still, no one has been able to give me what I requested and that is the legal signed contract with my signature and IP address where this account was supposedly opened. Mere statements is not suffice I do not believe. Then I get the excuse that since it was done online, there is no actual signature but an E-SIGN agreement that I still didn't get? Aren't they suppose to provide actual signatures? I mean, anybody can click a dot and act like they are someone they aren't right? It has just been a frustrating process. I then get a letter showing that this company has sold my debt to another collection agency (where this thread comes in should I ever encounter being sued by a debt collection agency). On top of the shenanigans with this company, I was told by another company today that Barclays legal rep told them about their pending lawsuit I had against them before they were even served! I mean, sent them documentation and everything. I was infuriated at Barclays because with all of the fraud and my sensitive PII going around, no one authorized this company to send my information to anyone else. I immediately filed an FTC complaint against them today. When I confronted the legal rep, he totally dismissed it and told me that my actions were meritless and that I am going down a slippery slope if I don't dismiss the lawsuit with them. Huh? Was that a threat? I didn't contact them to talk about my pending lawsuit with them, I contacted them to cease giving out my personal info immediately and that was the response I got. I have a court date set for Oct 24th with Barclays but I want to talk as intelligently as I know how and be able to win this case since I am representing myself. Any pointers or help to guide me in the right direction would be greatly appreciated. I am not that up to speed on California laws and how it governs consumers vs creditors but I would like to know my rights and what they are obligated to do or not do. Should I file a request for production if I am the plaintiff or no? What should I be doing at this point?

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      Brian Gray 2 weeks ago from Pennsylvania

      Durriyyah Leonard,

      Sorry to hear that you did not show up, but that is the case for most people in your situation. Unfortunately, when you don't show up, the plaintiff wins, even if they did not deserve to do so.

      So, what to do? First, if you can show the court reasonable cause for missing the court date, such as you were not properly served the summons, then you can ask the court to set aside the judgment and have a new trial date set. If there are no reasonable causes for having missed the date, then you will need a lawyer to file an appeal. This is where you want to shop around for a reasonable lawyer, but don't take too long, because you do have time limits.

      Only you know how much you can afford, or what terms are acceptable, such as settling with the plaintiff. Whichever works out the best financially, go with that. From here, it almost seems like the best thing to do is pay the lawyer to have the judgment set aside and a new trial ordered, then get the whole thing dismissed. Only you and your attorney can decide this.

      Good luck to you,

      Brian

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      Brian Gray 2 weeks ago from Pennsylvania

      CourtneHauser,

      Congratulations! I know you want to celebrate, and indeed you should. You won! Thanks for letting us know how things turned out.

      Brian

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      Durriyyah Leonard 2 weeks ago

      I only wish I saw this post before not showing up to court and having a default ordered against me. I am hoping you can help me now or is it too late? At this point I have reached out and spoken too one lawyer and it feels like they want me to settle with the company. The lawyer says the flat fee is $750 and that will allow them to put in a motion to vacant the default and re-open the case and then I can start from where you said in the article. The other option he said was $350 to work out a deal with the firm. He also mentioned that he works with this company and I just feel the lawyers are really relaxed and not really moving quickly giving me a since of urgency when today is the 4th and court is the 19th. What should I do in this case?

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      CourtneHauser 2 weeks ago

      I was to go to court today for the Warrant in Debt with Midland Funding and I received in the mail on Saturday the dismissal and contacted the court to make sure the case had been dismissed and it indeed had been. So I won against them! Thanks everyone for your help and insight into this

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      Anonymous752 2 weeks ago

      VSRL,

      I looked up my name on the courts website and found it, but I have not been served so I have not received a summons and complaint. Having found it, I submitted request for validation.

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      Brian Gray 2 weeks ago from Pennsylvania

      Jim Bob Texas,

      Super Congratulations! Not only did you win, but you persisted when most people would have been worn down and given up. Thanks a million for sharing your story with the readers here. That is more reference material to inspire others to not give up, but to do their research, study hard, and plan to win. You did extremely well. Kudos!

      Brian

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      Jim Bob Texas 2 weeks ago

      Brian,

      Wanted to share the conclusion to my long and tortuous story with your readers and thank you for your help.

      I've been fighting a Cleveland Law Firm for three plus years in a debt to Citibank N.A. and Amex. The case moved back and forth between their various lawyers, numerous deadlines were missed, my pro se motions were often ignored. I was certain the file had fallen into a toilet at the law offices, and I filed a Motion to Dismiss for Want of Prosecution.

      Generally, as you are no doubt aware, the courts default to a hearing of the evidence. I knew my chances were, as we say here in Texas, "Slim and none and Slim had just got on a bus to Amarillo." Shortly after my DWOP motion, the plaintiffs filed a Motion to Retain on Docket. I assumed we'd be back to filing competitive arguments via motion until the court got tired of it and set a docket date.

      I responded to their motion to retain with an argument in an expanded motion that their explanation for not meeting deadlines was not the court's purview. Plaintiffs argued they were not negligent but had business and staffing problems, and there was case law to support giving them the benefit of a doubt. (It was poorly interpreted). I insisted the court could not get into the business of why a law firm does or does not meet deadlines because those factors would, ultimately, delay civil court dispositions while showing benevolence to people who are poor at practicing law. The court's jurisdiction was the adjudication of a case on a reasonable timeline to provide expeditious dispositions to all parties. If a firm failed to meet court orders and deadlines, the court had no business considering the why of that lapse.

      The court finally set a hearing on my motion to dismiss and plaintiffs' motion to retain on docket. Unfortunately, I was traveling for a month and did not receive legal service. The hearing was held while I was away so I called the clerk this morning to see what my options were going forward. When I gave him the cause number, he asked me why I needed options.

      "Can I file a motion to rehear since I did not get service while I was out of town?"

      "Why would you do that?"

      "I don't understand."

      "The court ruled in your favor. The judge said you wrote a 'logical and legally compelling motion' and he dismissed the plaintiffs' motion to retain."

      "Nothing else for me to do?"

      "No."

      "This is over?"

      "Yes."

      This case never needed to happen. After being a cardmember for 30 plus years, I got ill and fell behind on two payments (was never late in my payment history) and my interest rate was jacked from 11.5 to 26 percent. I called and said that was unacceptable and they said it was my permanent interest rate. I told them I would not pay further but was willing to set up a schedule to retire all debt over time up until the moment they raised the interest rate. They refused. I stopped payment, and not too many months later they filed suit.

      Hard for me to believe it's over and I've won after three plus years. But I am pleased, obviously, and wanted to thank you for your insights and help along the way.

      Regards,

      Jim Bob Texas

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      Brian Gray 2 weeks ago from Pennsylvania

      Some excellent reference material:

      https://www.americanbar.org/content/dam/aba/events...

      Brian

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      Brian Gray 2 weeks ago from Pennsylvania

      15 U.S. Code § 1692e - False or misleading representations

      A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

      (1) The false representation or implication that the debt collector is vouched for, bonded by, or affiliated with the United States or any State, including the use of any badge, uniform, or facsimile thereof.

      (2) The false representation of—

      (A) the character, amount, or legal status of any debt; or

      (B) any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt.

      (3) The false representation or implication that any individual is an attorney or that any communication is from an attorney.

      (4) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.

      (5) The threat to take any action that cannot legally be taken or that is not intended to be taken.

      (6) The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to—

      (A) lose any claim or defense to payment of the debt; or

      (B) become subject to any practice prohibited by this subchapter.

      (7) The false representation or implication that the consumer committed any crime or other conduct in order to disgrace the consumer.

      (8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.

      (9) The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any State, or which creates a false impression as to its source, authorization, or approval.

      (10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

      (11) The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.

      (12) The false representation or implication that accounts have been turned over to innocent purchasers for value.

      (13) The false representation or implication that documents are legal process.

      (14) The use of any business, company, or organization name other than the true name of the debt collector’s business, company, or organization.

      (15) The false representation or implication that documents are not legal process forms or do not require action by the consumer.

      (16) The false representation or implication that a debt collector operates or is employed by a consumer reporting agency as defined by section 1681a(f) of this title.

      (Pub. L. 90–321, title VIII, § 807, as added Pub. L. 95–109, Sept. 20, 1977, 91 Stat. 877; amended Pub. L. 104–208, div. A, title II, § 2305(a), Sept. 30, 1996, 110 Stat. 3009–425.)

      Cox Medical Center, d/b/a/ Ozark Professional Collections v.

      Huntsman, 408 F.3d 989 (8th Cir. 2005). Eighth Circuit affirms

      district court finding that the creditor was a debt collector that

      participated in interstate commerce under 15 U.S.C.S. § 1692a and

      that it used a false and misleading name to collect its debts in

      violation of the anti-fraud provisions of 15 U.S.C.S. § 1692e(14)

      of the FDCPA

      Attorneys whose debt collection activities are limited to collection

      litigation on behalf of creditor clients are covered - Heintz v.

      Jenkins, 514 U.S. 291 (1995); Scott v. Jones, 964 F.2d 314 (4th

      Cir. 1992); Fox v. Citicorp Credit Services, Inc., 15 F.3d 1507 (9th

      Cir. 1994).

      “If the principal purpose of a lawyer’s work is the collection of

      debts, he is a ‘debt collector’ under the Act.” Wilson v. Draper

      &Goldberg, P.L.L.C., 443 F.3d 373 (4th Cir. 2006).

      Lawyers who regularly conduct foreclosures to collect consumer

      debt are “debt collectors” for purposes of the FDCPA. Wilson v.

      Draper &Goldberg, P.L.L.C., 443 F.3d 373 (4th Cir. 2006);

      Kaltenbach v. Richards, 464 F. 3d 524 (5th Cir. 2006)

      FDCPA liability is imputed to the law firm when the firm is a

      partnership, allowing the plaintiff to sue the partners as well as the

      partnership. The partnership is jointly liable for one acting as its

      associate or partner. – Bartlett v. Heibl, 128 F.3d 497, 499 (7th

      Cir.1997); Miller v. McCalla, Raymer, Padrick, Cobb, Nichols,

      and Clark, LLC, 214 F.3d 872, 876 (7th Cir. 2000). General

      partners are liable as indirect debt collectors. Randle v. GC

      Services, 1998 U.S. Dist. LEXIS 16222 (N.D. Ill.).

      Both collection agency/employer and supervisor and offending employee

      are liable, West v. Costen, 558 F.Supp. 564 (W.D.Va. 1983).

      "Debt collectors employing attorneys or other agents to carry out

      debt collection practices that violate the FDCPA are vicariously

      liable for their agent's conduct" - Martinez v. Albuquerque

      Collection Services, Inc., 867 F.Supp. 1495 (D.N.M. 1994).

      Oei v. N Star Capital Acquisitions, LLC; 486 F. Supp. 2d 1089

      (C.D. CA 2006). Courts routinely hold debt collectors vicariously

      liable under the FDCPA for the conduct of their attorneys in

      collecting debts on their behalf. Federal courts that have

      considered the issue have held that the client of an attorney who is

      a 'debt collector' is vicariously liable for the attorney's misconduct

      if the client is itself a debt collector as defined in the statute. Thus,

      vicarious liability under the FDCPA will be imposed for an

      attorney's violations of the FDCPA if both the attorney and the

      client are 'debt collectors'.

      Attempting to collect any amount not "expressly authorized by the

      agreement creating the debt or permitted by law" - 15 U.S.C.

      Section 1692f(1).

      A fee for providing the mandatory debt validation noticeSandlin

      v. Shapiro & Fishman, 919 F.Supp. 1564

      (M.D.Fla. 1996);

      Any representation which is objectively false constitutes a per se

      violation of Section 1692e - Creighton v. Emporia Credit Service,

      Inc., 981 F.Supp. 411 (E.D.Va. 1997).

      Even if not objectively false, any statement which is capable of

      deceiving or misleading violates Section 1692e - Jeter v. Credit

      Bureau, Inc., 760 F.2d 1168 (11th Cir. 1985).

      Any "contradicting and inaccurate" statements - Fox v. Citicorp

      Credit Services, Inc., 15 F.3d 1507 (9th Cir. 1994).

      A dunning letter sent on attorney letterhead violates numerous

      provisions of the Act if the lawyer does not personally review the

      debtor's file and have some knowledge about the alleged debt - Avila v. Rubin, 84 F.3d 222 (7th Cir. 1996); Boyd v. Wexler, 275

      F.3d 642 (7th Cir. 2001); Nielson v. Dickerson, 307 F. 3d 623 (7th

      Cir. 2002); Miller v. Wolpoff & Abramson, 321 F.3d 292 (2nd Cir.

      2/25/03).

      A communication purportedly signed by an attorney violates

      Section 1692e unless the attorney reviews the debtor's file,

      determines when particular letters should be sent, approves the

      sending of particular letters that are based upon the

      recommendations of others, and does not see particular letters

      before they are sent - Clomon v. Jackson, 988 F.2d 1314 (2nd Cir.

      1993).

      Collector must disclose in the first written communication with the

      consumer that "the debt collector is attempting to collect a debt

      and that any information obtained will be used for that purpose"

      and in all others that "the communication is from a debt collector"-

      15 U.S.C. Section 16

    • profile image

      VRSL 2 weeks ago

      Anonymous752,

      When did you send your debt validation request? Did you send it after receiving a summons and complaint?

      If that's the case, the plaintiff was not required to validate the debt.

    • profile image

      VRSL 2 weeks ago

      Brian,

      You asked me, "What is YOUR point?"

      I am not in any way attempting to be disrespectful. I appreciate and respect your opinion. Yes, you have been clear.

      You stated:

      "If a credit card company charges off, an account that is delinquent

      AND

      if that same credit card company THEREUPON receives FULL restituion for the amount owed on that account by the credit card company's insurer.

      THAT account is paid in full to the original creditor."

      I absolutely agree that a company who charges an account off to profit and loss AND receives restitution from its insurer is guilty of fraud. Howver, it must be proven that the company committed that act.

      The party who makes a claim is the party who must provide the proof. Therefore, a defendant who claims a plaintiff received restitution from its insurance company must prove that claim.

      In the event a company did not receive payment from its insurance provider, it is not a complicated process for a company to prove that fact.

      Here is my point:

      Considering the default rate of credit card accounts, if credit card companies were to receive restitution from their insurance companies for every account that defaulted, their insurance rates would go through the roof. Therefore, it stands to reason that "profit and loss" is more profitable.

      The Consumer Financial Protection Bureau (CFPB) has been after both original creditors and debt buyers for violations of laws. To date, the CFPB has not cited a credit card company for the type of fraud you have claimed. Again, that reason could be because of the financial advantage to charging off a debt vs. subrogation.

      Can a defendant make your claim? Absolutely! Lazy attorneys who are looking for easy judgments may fold.

      Can you cite any court ruling regarding credit card debt and subrogation? If not, perhaps it's because it's not an issue.

    • Hanavee profile image
      Author

      Brian Gray 3 weeks ago from Pennsylvania

      Anonymous752,

      That one is humorous. They are going to seek validation of the debt through court proceedings? Apparently they are unaware of the Fair Debt Collection Practices Act, but if they want to ignore that act, they had better get their act together. The law is quite clear that your request for validation of the debt is done by return mail, not by waiting for a court trial. They apparently think you are dumb, or they are dumb enough to try that tactic, but I would not let them off the hook. Apparently, they do not have sufficient proof to win their case, and they know it, thus the ruse. Keep in mind that, in order to file a suit in the first place, the plaintiff must have in hand sufficient proof to win their argument, or they lack legal standing to be in court, and if they don't have it now, they have no business pursuing the case. One of my points in court would be just that.

      And they further show their arrogant stupidity by asking you to make a payment to their office! Absurd! They know full well that if you did that, then you would be entering into a contract with them, so the answer is NO, you are not making any payments to them. You asked for validation, and they responded with deceit. If time permits, I would send them, via certified mail, return receipt requested, a repeat request with a 30-day time limit to respond, and I would inform them that if the legally requested information is not received by that date, you will file a motion to dismiss with prejudice. If there is not sufficient time for this, then I would most certainly bring this to the judge's attention in court and ask for a dismissal. Heck, if it were me, I would file the motion now.

      Brian

    • profile image

      Anonymous752 3 weeks ago

      Brian,

      I submitted request for validation to a lawyers office, they responded with 2 statements (6 months apart, no details etc) and said they will seeking to prove the validity of the debt through the court proceeding. But yet it goes on to say that I can contact their office to make a payment (like 2 statements prove anything). Now I have to await court paperwork, and I'm assuming since they made that statement in the letter that they'll be at court. What do you think the chances are that they'll have anything more? If I sent validation shouldn't they have responded providing everything I had requested? I haven't received the summons so I'm not sure what's going to be attached to that.

    • Hanavee profile image
      Author

      Brian Gray 3 weeks ago from Pennsylvania

      Geo,

      If you are being sued, the court will have the address that was used in serving the summons, which could be an old address. You can check with the court that is relevant to that old address to see what activity is transpiring. To sue you abroad, they would have to have that address and use a local law firm and court.

      Brian

    • profile image

      Geo 3 weeks ago

      i did talk to an attorney here briefly, who told me that if they didn't have my address they could serve me by public notice in the newspaper. I rarely read a newspaper any more! Who does? especially if I am abroad, I will never know if a judgement was filed or not. So my question if I give them my address abroad and they know where I live don't they have to serve me at that address? And in what state in the U.S. Would it be filed?

    • Hanavee profile image
      Author

      Brian Gray 3 weeks ago from Pennsylvania

      Geo,

      My assumption, and this is merely that, an assumption, would be that, if the card is issued in the U.S., and is used in the U.S., then the courts in the U.S. can be used to go after the debts. Now, if the debt is pursued in the U.S., the process has to follow all of the legal requirements of due process, which means that no judgment will be rendered without first giving the defendant proper notice and the right to defend. If you were not properly notified, you have a right to petition the court to set aside the judgment and have a new trial scheduled. I would recommend speaking to a local attorney about the process for making this happen.

      Brian

    • profile image

      Geo 3 weeks ago

      if you are a permanent resident of another country and the creditor or debt collector has your address can they get a judgement on you in the U. S. Without your knowledge ? How does this work?

    • Hanavee profile image
      Author

      Brian Gray 3 weeks ago from Pennsylvania

      Finkster1,

      It is a difficult sleuthing process to find out for sure if a law firm is indeed hired by Capital One, or retained by a junk debt buyer posing as Capital One. See if there is a Public Justice Center in your area, and ask them how you can get verification of the status of the plaintiff. Also, here is an interesting article that may be of some help to you:

      https://www.creditcards.com/credit-card-news/show-...

      As for asking the plaintiff to show legal right of subrogation of the debt, that won't hurt, but it may not show what you are seeking. The more recent the account was written off, the more likely the possibility that the credit card company could be seeking to go after the debt, but if the write off was more than a year old, it seems, note seems, to be being pursued by a junk debt buyer. If you can prove that this is a junk debt buyer misrepresenting themselves, yes, you can sue. But, this is going to be a difficult task for you.

      Good luck,

      Brian

    • profile image

      Finkster1 3 weeks ago

      If this law firm is misrepresenting themselves as working on behalf of capital one AND the fact that calls to cap one are connected to the law firm. I think a class action law suit against both cap one and this law firm asking for punitive damages as well as normal damages wouldn't be a crazy idea right ? Why hasn't someone already done this ? People are being beaten up and pushed around because they are afraid of these firms it's time someone makes THEM pay.

      Finkster1

    • profile image

      finkster1 3 weeks ago

      Brian

      Should I call the law firm and ask them to fax or mail me the proof of LEGAL RIGHT OF SUBROGATION OF DEBT ?

      Or wait till hearing...

      Finkster1

    • profile image

      Finkster1 3 weeks ago

      Brian,

      How can I find out for sure if he is indeed representing Cap One - should I call Cap one directly and ask ? Or is there a better way ?

      Thanks

      Finkster1

    • Hanavee profile image
      Author

      Brian Gray 3 weeks ago from Pennsylvania

      Finkster1,

      Here is an interesting link for you to study well (and I mean study well):

      https://www.paed.uscourts.gov/documents/opinions/0...

      Next, I would try to pay for a one-hour, private consultation with a local attorney and ask them how they can determine if either a.) Ratchford Law Group represents Capital One directly, or, b.) is illegally misrepresenting their relationship with Capital One. Because, the way the sentence is written, they are acting directly on behalf of Capital One, not as a junk debt buyer, and I am very suspicious of this wording.

      Do your due diligence, and seek the answer to that question. A lot hinges on the answer.

      Brian

    • profile image

      Finkster1 3 weeks ago

      Brian,

      I have a few charged off accounts at capital one. I wrote you before and with your advise sent discover and validation letters. Today I received letters back from ratchford law group saying: please be advised that this office represents Capital One Bank. They also sent statements from capital one showing balance and dates may 29- June 28 2016 31 days in billing cycle. Last page of statement reads your account has been charged off. It is now being serviced by the recoveries Dept.

      If they have been charged off- they got their write off its over correct. ?? Is this just another scare tactic ??

      Thank You

      Finkster1

    • Hanavee profile image
      Author

      Brian Gray 3 weeks ago from Pennsylvania

      Sissy,

      Several things here. If at all possible, I would consult an attorney about having this judgment set aside and a new trial ordered, and base that on not having been properly served. If you can prove that the reason you appeared for trial at the wrong time, after judgment had been rendered, was because you were not properly served, then you might be able to have a new trial set.

      As for the car, debt collectors go after bank accounts and wages. They will not be able to go after your car.

      Brian

    • Hanavee profile image
      Author

      Brian Gray 3 weeks ago from Pennsylvania

      VRSL,

      In all instances, I have been abundantly clear, and I will reiterate here:

      If a credit card company charges off, or writes off, an account that is delinquent;

      AND

      If that same credit card company THEREUPON receives FULL restitution for the amount owed on that account by the credit card company's insurer;

      THAT account is paid in full to the original creditor;

      THAT account is no longer in the possession of the original creditor:

      THAT account is owned, via rules of legal subrogation of debts, by the insurer that satisfied the debt;

      AND, any attempt on the part of the original creditor to thereafter pursue, or sell, that same account after having been satisfied by their insurer IS FRAUD.

      Now, what is YOUR point.

      Brian

    • profile image

      Sissy 3 weeks ago

      Good morning I have two judgement in NC one this year I went to court but I don't fill out the paperwork that the lawyer send at court they never called my name the lady told me it was because they had already entered the judgement I do work and have my two grandkids that lives with me both my car are no good my mother bought a car for me but I had to go get it and they put it in my name in another city so my mom said it was ok once we get title we will fix it she will be the owner and I'll be the co-owner but once I paid her back she will put it in my name my question is do you think credited will come for the car or will I have a chance to have it exempt Thank You

    • profile image

      VRSL 3 weeks ago

      Brian,

      I understand your statements. When I wrote "should not", I should have written "cannot". I apologize.

      However, there is a difference between subrogation and a charge off.

    • Hanavee profile image
      Author

      Brian Gray 3 weeks ago from Pennsylvania

      VRSL,

      You write that "it is understandable that a company "should not" pursue a debt that has been paid by its insurance company." "Should not" is an understatement. Research the laws regarding legal right of subrogation of debt, and you will find that not only should they not pursue it, it is fraud if they pursue it. The debt that is paid for by the insurance company is satisfied by the insurance company, and is therefore no longer owned by the original creditor, but by the insurance company. Only the insurance company has legal right of subrogation of the debt.

      Brian

    • Hanavee profile image
      Author

      Brian Gray 3 weeks ago from Pennsylvania

      CourtneHauser,

      Sounds to me like you won. Congratulations!

      Brian

    • profile image

      VRSL 3 weeks ago

      Anonymous752,

      It's possible that a law firm could lie about the identity of its client but that firm/attorney would be in BIG trouble for doing so.

      Absent a recent sale of an account, your credit report should indicate that the account was "sold" or "transferred".

      In addition, in the event an account is sold to a debt buyer, Cap1's entry would not be updated each month. For instance, if Cap1 sold an account in April, 2015, its entry on a credit report should only reflect the details of the account as of April, 2015. It should also show a -0- balance (due to the fact that nothing can be paid to Cap1 because the account was sold).

    • profile image

      VRSL 3 weeks ago

      Brian,

      You stated:

      "Also, it is rare for credit card companies to pursue debts that have been written off, since they can not do so if they have received either an insurance payoff or a tax credit."

      It is understandable that a company should not pursue a debt that has been paid by its insurance company.

      However, credit card companies "charge off" debts. That's a tax issue. In regard to profit and loss, the account is a "loss" and is deducted from "profit".

      Do you have a statute or court precedent that shows an original creditor cannot sue for a debt that's been charged off?

      I'm not attempting to be disrespectful of your advice.

    • profile image

      CourtneHauser 3 weeks ago

      Good afternoon,

      I still have about a week and half before I am to go to court for the warrant in debt with Midland Funding. I sent them a certified letter about a week ago demanding a signed contract, information on the fact that the original creditor was paid via tax credit or insurance monies etc. I also at that time filed a complaint and attached all the documentation they had sent me and the letters that I has sent to them with the Consumer Financial Protection Bureau, This was done on 9/15. I received an letter from Midland Funding today,

      Dear Ms. Hauser:

      Midland Credit Management, Inc. (“Midland Credit”) received your inquiry on September 15, 2017.

      Midland Credit is the servicer of the above-referenced account on behalf of the current owner, Midland

      Funding, LLC (“Midland Funding”). Thank you for sharing your concerns.

      You write that you requested documentation regarding the above-referenced account, including proof

      that you entered into an agreement with Midland Credit, but it was not provided. When a creditor

      "charges off" an account, it means that the creditor no longer believes the consumer will pay the bill

      and has written the debt off of its books. Often, they then sell the debt. Please note that the underlying

      promissory obligation remains valid, due and owing. Just as the original creditor had the right to legally

      seek repayment of the promissory obligation, the new third-party purchaser has the right to repayment

      of the credit account.

      Midland Credit’s business records indicate that it received correspondence requesting validation from

      you on April 20, 2017. A copy of the verification information provided by the seller was subsequently

      mailed to you in response. Please note that the verification information provided by the seller meets

      the requirements of the Fair Debt Collection Practices Act (“FDCPA”). The original contract, complete

      payment history, and a full set of billing statements are not required under the FDCPA.

      You express a concern that a warrant in debt was issued against you. A review of Midland Credit’s

      business records indicates that on June 11, 2017, this account was placed with Midland Credit’s

      Internal Legal Department (“Internal Legal Department”). The Internal Legal Department’s business

      records indicate that an initial letter was mailed to you on June 22, 2017 to the same address listed

      within your complaint. When a resolution could not be reached, suit was filed on July 18, 2017, and

      service was completed on August 9, 2017. The Internal Legal Department’s records further indicate

      that it received a letter from you dated July 7, 2017, wherein you continued to dispute the debt. In

      response, the Internal Legal Department again mailed you a copy of the verification information from

      the seller.

      With that said, in keeping with its Consumer-First policy, Midland Credit made the business decision

      to close the account. There will be no further collection activity or sale of this account. In addition, the

      three credit-reporting agencies have been notified to delete Midland Funding’s reference to the collection account in question from your consumer credit files. A copy of the Universal Data Form

      showing the request which was sent to the credit reporting agencies is enclosed for your records.

      Midland Credit considers consumer complaints a serious matter and fully respects consumers’ rights.

      Midland Credit apologizes for the inconvenience caused to you.

      Thank you again for your assistance in this matter. Please contact Midland Credit’s Consumer Support

      Services team at (800) 825-8131 ext. 32917 should you have any further questions.

      This communication is from a debt collector.

      I will still call the courts before going to see if they cancelled if not I will still show up and not lose on a technicality

    • Hanavee profile image
      Author

      Brian Gray 3 weeks ago from Pennsylvania

      Anonymous,

      A competent attorney would research that question. It all depends on how they word their correspondences to you. These collection companies know how to skirt the law, but some do actually violate that statute, so it is worth pursuing if there is tangible proof that they indeed misrepresent themselves as being directly connected to the original creditor. A lawyer would need to read your correspondence, and that lawyer should be one who is adept at credit and business law.

      One would assume that, if the debt was written off, that either an insurance payout was forthcoming, or at least a tax credit was taken. That does take some research.

      Brian

    • profile image

      Anonymous752 3 weeks ago

      VRSL/Brian

      The actual verbage on my credit report is "account charged off, xxx.00 was written off". So with that being said, if it was written off, didn't they get an insurance payout or a tax write off and the attorneys office representatives telling me that they "represent" capital one would be a violation under the fair debt collection practices?!

    • Hanavee profile image
      Author

      Brian Gray 4 weeks ago from Pennsylvania

      VRSL,

      I think there is some misunderstanding here, since I have never stated that a debt collection law firm is a debt buyer. The norm for the industry is that a junk debt buyer retains a law firm to represent them in court. The two can never be one and the same.

      Also, it is rare for credit card companies to pursue debts that have been written off, since they can not do so if they have received either an insurance payoff or a tax credit.

      Brian

    • profile image

      VRSL 4 weeks ago

      Brian,

      In regard to Anonymous752, simply because a debt collection law firm represents debt buyers such as Midland Credit does not mean it cannot represent original creditors.

      It should not be assumed that a debt collection law firm is also a debt buyer. While there may be some law firms that purchase debts, most law firms do not purchase debts and strictly collect for the entities that hire them.

      The poster should refer to his credit report. If the account has been sold to a debt buyer, the original creditor's (in this case, Capital One) entru will indicate "sold" or "transferred".

      If Capital One's entry does not indicate that the account has been sold or transferred, then the chances are that Capital One still owns the account.

      Is there an affidavit from Capital One regarding the account? If so, it will indicate whether Capital One is collecting the debt for itself or has sold it to a debt buyer.

      Absent an affidavit from Capital One, I would request proof via discovery that Capital One is the party collecting the debt.

    • Hanavee profile image
      Author

      Brian Gray 4 weeks ago from Pennsylvania

      Wonton87,

      Not having an attorney present to argue for you, you were out-gunned by the plaintiff. They won on an argument that should not have won, but you did not know the proper defenses. Depending on how recent this judgment was, you could seek an appeal with the use of a competent lawyer.

      What should have been used was the defense of requesting they show legal right of subrogation of the debt, which they would not have.

      Brian

    • Hanavee profile image
      Author

      Brian Gray 4 weeks ago from Pennsylvania

      Jessica S.,

      Yes, ignoring them was the wrong step, because that led to a default judgment against you. You have several options: wait out the statute of limitations, settle with them for much less than they want, or file for bankruptcy (which completely wipes this out). I would pay for a one-hour, private consultation with a lawyer who specializes in these types of cases, and ask them what would be the best direction for you, once they know all the particulars.

      Brian

    • Hanavee profile image
      Author

      Brian Gray 4 weeks ago from Pennsylvania

      Anonymous752,

      Junk debt buyers virtually always try to make the person they are pursuing think that they represent the original creditor, so very little surprises me when I hear things like this. Usually within six months to a year after no activity on an account, the credit card company writes off the debt, since they have to finish out the fiscal year at some point and balance the accounts in order to receive either the insurance payoff or the tax credit. Afterwards, the junk debt buyers move in, and it is fair to say that if the account has been in arrears more than a year, the people coming after you are junk debt buyers with no connection to the original creditor.

      Brian

    • profile image

      Wonton87 4 weeks ago

      Went to court for a charged off credit card purchased by a debt collector. Followed these steps, request to produce, etc. They sent like 50 pages of account statements and the paperwork showing that they purchased multiple accounts from my original creditor. Long story short I lost in court due to the judge stating that the collections agency wasn't suing under breach of contract, but they were suing under statement of accounts if that makes sense? I don't know, but they never produced a sign contract from the original creditor and I never admitted to the debt. How could someone defend themselves in the instance of statement of accounts?

    • profile image

      JessicaS. 4 weeks ago

      I am wondering what I can do after a judgment has already been entered. Being young and naive, I ignored it when a summons first came. It's been 5 years and now I want to fix my credit but I have this $15,000 judgment hanging over my head for a credit card that originally had a balance of $5000. I am self-employed and don't have any active bank accounts or any property, so liens have been attempted but have been unsuccessful. Is my only option to pay this debt off in full? It would take me years to do that :(

    • profile image

      Anonymous752 4 weeks ago

      Hi Brian,

      Have you ever seen a scenario where Capital One is showing as charged off on a credit report, and a lawyers office sues you after charge off? The lawsuit says Capital one vs. my name. The lawyers office is saying "they represent capital one". What has me curious, is the same lawyers office is handling a midland funding case and I know midland is junk buyer.

      Thanks for your time.

    • Hanavee profile image
      Author

      Brian Gray 4 weeks ago from Pennsylvania

      Shay,

      I always say this: find an attorney, and if you cannot afford an attorney, then try to at least pay for a one-hour, private consultation with one. Make sure the attorney is someone who specializes in these types of cases and wins them. You are wasting your time if you go with someone who tells you to settle.

      The third method is representing yourself, in which case, you want to read my article, study it well enough to be able to use it to your advantage, then read all of the posts on here. Yes, there are thousands, but you can skip over the ones that are not relevant to your case. Study well, because this is a free library, and many have used this information to win their cases. Read their comments and strategies, and take notes.

      Good luck to you,

      Brian

    • Hanavee profile image
      Author

      Brian Gray 4 weeks ago from Pennsylvania

      Yvette,

      Sadly, many lawyers either don't care to learn about the system that has been built up over the years to take advantage of people who lost their way financially, leaving them at the mercy of these blood suckers, or they are complicit. But, there are lawyers who know that this whole thing is a scam, and they are the ones who will give you the correct advice. They do exist. Just because someone is a lawyer does not make them perfect and all-knowing. They have their flaws.

      Legal right of subrogation of the debt means this: and if you read the posts that are on here, you will see that I have covered this numerous times, so I am not going to re-elaborate here. When a credit card company writes off a debt, they receive either an insurance payoff, or a tax credit. Once they receive this, they can no longer pursue, nor sell, the debt. Only the insurance company has what is called "legal right of subrogation of the debt," which would allow them to pursue it...and they don't do this. So, who can legally pursue this debt? No one. Anyone pursuing this debt has to prove that they satisfied the full debt and now own it, which they will not be able to do.

      Brian

    • profile image

      Shay 4 weeks ago

      I just left a mediation hearing with Portfolio Recovery Associates. We couldn't come to an agreement (I requested proof that I owed the debt to them besides the bill of sale and account statements that they presented me with in the summons and at the hearing). It's been set for trial (no trial date yet). I'm trying to figure out how to proceed in case I have trouble finding an affordable lawyer to represent me.

    • profile image

      Yvette 4 weeks ago

      I'm happy to read your reply, thank you!

      I will file that response by my last day to answer. :)

      I honestly wonder why all 4-5 attorneys here told me that the word Asignee didn't mater and it didn't matter that this company started out by saying on the legal form of the request for answer debt purchaser name "as assignee of" Previous creditor...

      May I ask, what proof of subrogation would they need to file to be sufficient?

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      Brian Gray 4 weeks ago from Pennsylvania

      Yvette,

      These are undoubtedly junk debt buyers. They have tried to make you think that they are the original creditors, or at least related to the original creditors, but one thing you should always remember: any collector misrepresenting themselves as the original creditor is committing fraud and that is punishable under the law. They know this, but many of them still skirt very close to the line, and many of them even cross the line assuming that you won't know the law.

      Be that as it may, use all of the points of my article to fight them, and ask them to show proof that they have legal right of subrogation of the debt. Send them a certified letter, return receipt requested, and give them thirty days to do so. You can word it this simple:

      "Please show proof of your legal right of subrogation of the alleged debt, which debt you allege I owe you. If said proof is not forthcoming within thirty (30) days, I shall ask the courts to rule against your actions."

      Brian

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      Brian Gray 4 weeks ago from Pennsylvania

      nmup,

      Congratulations! Your hard work and study paid off. Thanks for sharing the good news.

      Brian

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      Yvette 4 weeks ago

      I've read your article and it gave me courage, but to try to verify laws in my state, I've talked to several attorneys, all of which say they will not take on my case and they basically tell me that the debt purchaser will win, get a judgement against me.

      I have NOTHING to take, but I sure don't want to give up fighting this.

      I received the dreaded papers a couple weeks ago, my teenage child signed for them. (Is that legal?)

      I looked through all of the pages they turned in, and they're requiring an answer from me, one in which I plan to give. I'm just trying to be as patient as possible before I give an answer. An answer where I will deny owing the said company any money.

      They say they are an "assignee" of a creditor I once used, but isn't an assignee someone who is assigned something, and not a purchaser of something?

      I called my old debtor and my old account with them is closed and they could not give me any info, and they said that the other company is a "debt purchaser" since the lady had to google to find that out and she said that they are not affiliated with them.. So if they were technically an assignee, would they be affiliated with them in some way, besides purchasing debt?

      My account was in default over 1 year before the apparent debt purchase bought my debt.

      They filed my original vehicle purchase agreement, they filed letters from my old creditor (which I never received actually) that said my vehicle was repossessed and another letter that states that my vehicle was sold at auction on "x" date Adie "x" amount, etc.. They have a very generic paper that states many different numbers, supposed my original purchase amount, payments, other finance fees, vehicle sale amount, other fees associated with repo, etc..

      The paper does not have my name, acct #, nothing on it. I truly do not know if it's accurate.

      They also filed Avery generic Bill of Sale from my old creditor to themselves. The bill of sale does not list my name, acct #, nothing. Just basic bill of sale that says my old creditor and this debt purchaser made a deal of some sort.

      That was it. I do want to mention, before my old creditor "sold my debt" apparently, they tried to settle for 25% or less of the amount I owed. This company is coming after me for a balance I that I think is incorrect, and attorney fees, and other court costs.

      None of which I can pay, and none of which they will be able to garnish my wages for; etc.

      If I fight this, what advise do you have based on what I shared? And also, if I go to court, will I be forced to pay court fees that day? I literally have no money, no job, only child support. No assets, lost them all due to moving 10 hours away and the x destroyed it all anyways.

      I will not admit to owing this debt, because they could have received my info by accident, since the bill of sale does not say specifically my info. Also, I never received a letter from my old creditor stating they were selling my acct, and they don't have a letter staying such either.

      All attorneys I've talked to think I'm crazy and they all say file bankruptcy. I only have this 1 debt, why would I file bankruptcy? They tried to settle for $3-4,000... Why would I pay $15,000?

      Why would a judge justify that?

      Just curious your thoughts. Thank you for your article and your time!

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      nmup 4 weeks ago

      Brian - I wanted to share the GOOD news! Portfolio Recovery Services has filed to dismiss my case without prejudice prior to our court date next month! I have been anxiously awaiting my answers from them on my first set of admissions, interrogatories, etc that I sent to them; knowing the clock was ticking down. I looked at the court website today, and saw they filed for voluntary dismissal yesterday! Thank you so much for all your time and valuable insight.

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      Brian Gray 4 weeks ago from Pennsylvania

      Debbie,

      Whatever the court asks for, I always give. As for employer address and phone number, I would ask the clerk of the court if that is really necessary, and follow their advice. And, yes, I would check the box that I deny the plaintiff's claim and list the standard reason that we all use: "Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim."

      Brian

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      Debbie 4 weeks ago

      So in order to answer my summons there are boxes to check. I should check deny and for the reason put one of the defensive that you've listed?? Also on my summons it requests my employers address and phone number. Do I have to give this information? I'm located in Alabama.

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      Brian Gray 5 weeks ago from Pennsylvania

      CourtneHauser,

      As far as printing all the comments on this hub, that would be a lot of paper. I would read them and be selective as to which ones you need. Then, copy and paste the ones you want into a Word document and print that.

      Brian

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      Brian Gray 5 weeks ago from Pennsylvania

      CourtneHauser,

      Well, that's one good step. My guess is that they removed the credit report until they can win their case, since reporting it without validation can be legally problematic for them. Prepare your case and win. Good luck.

      Brian

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      CourtneHauser 5 weeks ago

      Also how do I print all the comments on this thread to be able to go and read them all

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      CourtneHauser 5 weeks ago

      Ok so today I got a notification that Midland Funding Group has removed their collection from my credit report. Again we have a court date for the Warrant in Debt on Oct 4th. Why would this happen if they are still suing me?

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      Brian Gray 5 weeks ago from Pennsylvania

      Potter 1903,

      Portfolio Recovery has been the subject of many a post on here. Take the time to study all of the posts (I know there are many, but if you want to win your case, you study hard and apply the knowledge), because many people have posted on here about taking on this bunch and winning.

      Basically, what Portfolio has offered is insufficient to win their case. And "custodian of records?" This makes her what? What is her relationship with your original creditor? What makes her an expert on validating your debt? This scenario has been covered many times in various posts on here, so do your homework and read the posts that are relevant. You will find your same situation on here many, many times, thoroughly discussed and dissected neatly for you. Study well, be prepared, and win!

      Answer the summons immediately, and tell them that you plan to appear and defend yourself. Then prepare your defense. And as I said earlier, I know there are so many posts on here, but each of them has something to share in helping you win your case, so don't neglect the library that is right here at your fingertips. It's free!

      Brian

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      Brian Gray 5 weeks ago from Pennsylvania

      Bill Haubrich,

      Here are some of the options: you hire a competent debt attorney, and let the attorney fight for you; you spend money to have a one-hour, private consultation with an attorney and plan your course therefrom; or you defend yourself. That is if you want to fight this. If you want other routes, there is bankruptcy, and there is settling with the plaintiff. Personally, I would fight them, because I know that they do not own the debt. The only way that they can own this debt is if you do not appear and they get a default judgment against you, or you sign an agreement with them to pay them. Even if they could prove that you owed the sums alleged to the original creditor, why do they own this? What about scienti et volenti non fit injuria? They knowingly bought a bad debt. How are the wronged or harmed by you? The points in my article are vitally important, so I would study them and apply them all.

      Most of all, I would study well all of the legal implications of "proof of legal right of subrogation of the debt." And I would apply this knowledge to my case and get a judgment against them for dismissal with prejudice...because they do NOT own your debt.

      Brian

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      Brian Gray 5 weeks ago from Pennsylvania

      Scott Ashe,

      I would check with the clerk of the court. Something is not right somewhere, and the clerk of the court should be able to clear this up for you. And by having the clerk of the court involved, you have proof that you did your due diligence.

      Brian

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      Potter1903 5 weeks ago

      Hi Brian,

      I ve received summons today from small claims court. Plaintiff is portfolio recovery. They ve attached couple of statements from my original creditor (citibank), a bill of sale which does not include any of my information and a notarized affidavit from one of their employees. She is the custodian of records. How should i proceed with that ? Thank you.