You Can Beat Credit Card Debt Collectors

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

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

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

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

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

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

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

What to Do

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

Answer the Summons

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

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

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

File a Request for Production

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

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

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

Why You File a Request for Production

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

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

What to Say on the Day of the Hearing

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

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

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

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

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

For your next step, you state the following:

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

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

You want to state this:

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

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

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

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

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

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

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

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

Next, we come to:

4. Insufficient specificity in a pleading.

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

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

Next on the list:

5. Defendant cites Failure of Consideration:

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

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

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

Next, we come to:

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

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

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

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

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

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

Now, we move to:

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

You can simply state,

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

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

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

Nearing the end of our list, we come to:

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

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

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

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

Lastly, we come to:

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

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

More Things You Should Know

Statute of Limitations

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

Is the Debt Satisfied?

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

Debt Collectors Need To Validate the Debt

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

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

The Attachment Rule

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

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

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

Check Every Rule, and Good Luck

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

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

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

Brian Gray

Additional Materials For Your Help

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

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

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

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

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

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

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

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

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

Illegal Collection Efforts in the News

Federal Government Orders Firm to Stop Unsupported Collection Lawsuits

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

Fraudulent Debt Collection is Big Business

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

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

Information From NOLO on Debt Verification

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

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

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

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

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

What Documentation Must the Creditor Provide?

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

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

What If the Collector Cannot Produce the Assignment?

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

Counterclaims if the Collector Did Not Previously Verify the Debt

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

An Important Article To Read From The New York Times

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

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

Here is a quote:

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

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

From New York Times article by Jake Halpern

More from this article:

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

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

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

More from Halpern's article:

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

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

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


Letter Requesting Validation of Debt

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

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

*What the money you say I owe is for;

*Explain how you calculated what you say I owe:

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

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

*Identify the original creditor;

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

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

*Provide me with your license numbers and Registered Agent.

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

*Violation of the Fair Credit Reporting Act

*Violation of the Fair Debt Collection Practices Act

*Defamation of Character

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

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

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

What Is Subrogation?

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

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

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

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

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

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

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

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

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

Two Good Subrogation Definitions

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

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

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

More About Subrogation

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

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

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

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

Transferring Your Account

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


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

The Order of Transition in Credit Card Debt

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

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

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

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

A Deceptive Collection Practice

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

"Dear (Your Name Here),

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

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

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

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

One of My Readers Shared This Exceptional Material

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


Rodney Miner

Kellogg, Idaho 83837

208/786-2810

Defendant

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

MAGISTRATE DIVISION

Cavalry SPV I, LLC,

Plaintiff,

vs.

Rodney Miner,

Defendant.

Case No.: CV-2017-586

RESPONSE TO MOTION FOR SUMMARY JUDGMENT

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

MEMORANDUM OF POINTS AND AUTHORITIES

I. Fact

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

Legal Argument

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

Defendant is entitled to recover its costs.

III. Conclusion

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

DATED this fourth day of January, 2018

_________________________________

Rodney Miner

Defendant Pro Se

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

John H. Wilkinson ISB #8597

Machol & Johannes, LLC

1412 W. Idaho Street, Set 238

Boise, ID 83702

Attorney for Plaintiff

Sent by: Rodney Miner

More Great Material Shared By Rodney Miner

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

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

Order To Dismiss Without Prejudice Provided By Rodney Miner

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

Here is the Timeline for Rodney Miner's Case

Here is the Rodney Miner suit Timeline.

11/07/17 Served SUMMONS

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

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

Pretrial Conference: Monday, January 8, 2018

Status: Monday, February 12, 2018

Court Trial: Wednesday, February 28, 2018

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

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

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

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

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

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

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


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

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

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

Another Very Interesting and Educational Link

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

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

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

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

You can find it here:

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

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

Questions & Answers

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    • Hanavee profile imageAUTHOR

      Brian Gray 

      33 hours ago from Pennsylvania

      Mary Chavez,

      Thanks for writing. I will have to re-read the spot in my article where I seem to advise sending the request for production to the court. People should send that only to the plaintiff.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      33 hours ago from Pennsylvania

      I just received this one from one of my readers, and I hope they don't mind me sharing it:

      Dear Brian

      Your article on how to fight a debt collector that is suing was invaluable. My husband had 2 old unpaidcredit cards that had long ago been sold to debt collection agencies. He received a summons from a law firm and we were stressed out and worried until we found your article. We followed everything you said to do. We did not ignore the two summons, but showed up to court. We were shocked to hear the docket and see that one lawyer shows up every Thursday at court for 10+ debt collection suits. Only 2 defendants showed up, the rest were automatically ruled against since they were no shows. So every week they probably have 10 ormore no shows that are ruled against. My husband told the lawyer he wanted a hearing, he used your arguments regarding a lack of any contract between he and the debt collector and no signed contract showing his original contract with the credit card company, etc. We left having no idea how the magistrate would rule, but I thought it a good sign that the plaintiff’s lawyer had no rebuttal to his defense. A week later we received letters from the court saying my husband won both cases and owes nothing, and the companies can no longer come after him because he asked that it be ruled with prejudice which the magistrate did. Thank you so much for your article and help! We are happy he decided to fight them and won thanks to you!!

    • profile image

      Mary Chavez 

      41 hours ago

      Thank you so much for answering so fast. You really are dedicated to your blog. For some reason my comment didn’t post when I did it.

      You are right when you say that even if the time to file an answer has expired, try doing it. The clerk at the court can tell you if you still have time to do it. There is too much to learn about these processes and having a person like you to answer questions is really valuable. Thanks you so much for all the time you dedicate to us!

      I noticed people are asking about sending the request for production to the judge and I think that is because you say to do so on the article. After reading the Q&A I learned that it should only be sent to the plaintiff. Thanks again!

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 days ago from Pennsylvania

      Moby12,

      The request for production is always sent to the plaintiff, not to the court. I would send the plaintiff a request for production as well as a request that they show legal right of subrogation of the debt.

      The summons may ask you certain questions, but usually, it is just your plea, and you don't need to elaborate. Just answer that you deny their allegations and wish to have a trial.

      Brian

    • profile image

      Moby12 

      2 days ago

      Thanks again Brian.

      Basically, I received the letter from the court stating I'm being sued. The only form attached to the court's letter was a single page complaint from Midland's attorney stating very basic information about the account (my name, last 3 of my SSN, and last 4 of the account number) but nothing else besides that they are seeking the sum of the debt from me. Would it be correct to send a request of production along WITH the answer that I don't agree that I owe them? Or should I answer first and wait for a response before sending a request of production?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 days ago from Pennsylvania

      Moby12,

      I sometimes suggest using that answer, even when it is not correct, because it puts work back on the plaintiff to complain and do something about it. But, in the case of this question, it is true that the plaintiff has not made it clear why you owe them money. So, in my personal opinion, I think the answer fits.

      Since I don't have all the particulars of your case, I am not sure that I could answer that second question regarding "a contract dispute." I don't know what contract is in dispute, nor who is disputing what.

      Brian

    • profile image

      Moby12 

      3 days ago

      Thanks Brian,

      When answering the complaint, would it be sufficient to us " 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." as a reason to why I do not owe the plaintiff the monies being claimed?

      Also, they're suing on the basis of a contract dispute. I do not have a contract with Midland and therefore should be the wrong basis to be sued on, correct?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 days ago from Pennsylvania

      Moby12,

      Research the plaintiff online. You may find some interesting things about them. Just type in "Midland Funding adverse court actions."

      As far as how to handle the activity in New Jersey, pretty much the same as everyone else who has posted. Although some States do send these cases to higher courts, most handle them through the lower magisterial court system, which is what I typically refer to. Some States also require arbitration, so research what your State requires. If need be, contact the clerk of the court listed on the summons, and see if the court is magisterial. If it is moved to a higher level court for any reason, then my best advice always is to pay for a one-hour, private consultation with a good attorney.

      As for the harassing phone calls, document the times and the conversations. You may use that in court. Tell them when they call to cease and desist, and warn them that, if they persist, you will seek legal action against them. If you have their mailing address, send them a certified letter, return receipt requested, and demand they cease and desist. The letter is legal documentation and proof of your demands should you end up suing them.

      Brian

    • profile image

      Moby12 

      4 days ago

      Hi Brian,

      I just got served a letter stating I'm being sued for Midland Funding LLC by Attorney Pressler Felt & Warshaw. After reading your article, which is excellent by the way, I plan to go forward and fight this. What is the proper way to answer this allegation in the state of NJ? Also, if I felt harrassed, I mean 4-5 phone calls per day by Midland, is there a way I can use that as ammo when the time comes in court? Thank You

    • Hanavee profile imageAUTHOR

      Brian Gray 

      9 days ago from Pennsylvania

      Renee SB,

      Standard procedure for junk debt buyers is to convince you that it is your original creditor coming after you. They skate very close to the edge of illegal action when they make their claims, because it is illegal for them to say that they are working directly at the behest of the original creditor if they are not.

      The common method used by creditors is to write off a debt after six months of inactivity on the account. Some time after that, they sell it to a junk debt buyer at a bad debt auction. In the vast majority of cases, this is what people are up against when they receive a summons. However, if you owed a huge amount, like $10,000 , and the account was only inactive for two or three months, the original creditor might opt to have their own legal department pursue you. Nonetheless, it has to be worth the time and legal fees for a credit card company to come after you, and only you know this amount. My guess is that you are being pursued by the typical, unscrupulous, junk debt buyer.

      Send them a request for legal proof of their right of subrogation of the debt. That will give you the answer.

      Brian

    • profile image

      ReneeSB 

      10 days ago

      I've received a summons and complaint. It says that Discover Bank is the plaintiff. One of the documents that they had with the complaint is an affidavit from someone that says she works at Discover. It has my name, account number, the day the account was charged off, and the last payment.

      The last sentence says I owe the Plaintiff xxxx.xx. Since Discover is the plaintiff, does that mean Discover is suing me?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      10 days ago from Pennsylvania

      Adam,

      The rule of thumb is usually this: if the account has not had activity on it for more than six months, the chances are great that the original creditor has written off the debt. If the debt is small, the creditor will usually sell if off to a junk debt buyer at a bad debt auction. One way to tell is to send a request to the plaintiff asking for them to show their legal right of subrogation of the debt. They will then show you that they bought the debt, and you will have your answer.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      10 days ago from Pennsylvania

      Adam,

      The rule of thumb is usually this: if the account has not had activity on it for more than six months, the chances are great that the original creditor has written off the debt. If the debt is small, the creditor will usually sell if off to a junk debt buyer at a bad debt auction. One way to tell is to send a request to the plaintiff asking for them to show their legal right of subrogation of the debt. They will then show you that they bought the debt, and you will have your answer.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      10 days ago from Pennsylvania

      Peter,

      As soon as you receive the summons, file your intention to appear in court within the time limit posted on the summons. Then, send the plaintiff a request for production via certified mail, return receipt requested. Even though they may not answer, it lets them know that you are not going to hide and let them win a default judgment.

      Then, go to the bottom of my blog and read all of the information I posted from Rodney Miner. Very valuable information contained in that. You'll be glad you read it.

      Good luck,

      Brian

    • profile image

      Adam232 

      10 days ago

      Capital One Bank (USA), N.A. is listed as the plaintiff. Will the above process still work or not? I have a feeling they will have more info to provide than a debt collector that purchased a debt.

    • profile image

      Adam 

      10 days ago

      Will this work if I am being sued by Capital One and not a collection agency? Capital One Bank (USA), N.A. is listed as the Plaintiff and they have an attorney in Tx representing them.

    • profile image

      Peter 

      10 days ago

      Hi Brian,

      I was sued 2 years ago by Bank of America and I ignored the court date and they end up with a default judgement.

      This time looks like Calvary filed a lawsuit. I have not been served yet. Whats the best course of action right now?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      12 days ago from Pennsylvania

      Mary Chavez,

      Several things that you should note from my article: one is the demand for an accurate accounting of the amount alleged owed, and another is the request for production. You see, your defense is two-fold: make them prove the amount that they are alleging is owed (such as the request for production), and make them prove that they have a right to this debt (such as the request for them to show their legal right of subrogation of the debt).

      People argue all the time about the proper time to send a request for production, but the reason I tell people to send it as soon as possible is to send a signal to the plaintiff that you are not going to roll over and play dead so that they can get a default judgment. Even if your request is denied or avoided through other means, you have kicked the door open, and it allows you later to ask questions and get answers with the judge's sympathies. If you have not been sued, the thing you want to do is to send the letter requesting validation of the debt. Once sued, send the letter requesting production.

      Brian

    • profile image

      Marychavez 

      12 days ago

      I can’t tell how many times I have read your article. It has very very valuable information. Thank you so much for sharing it.

      Midland sent copies of some statement in the summons documents (the ones creditors send every month with your payment due) and also information about the date I opened the account and the amount of my last payment. Is that proof enough that I owe them the balance? Or can I go ahead and file my answer and send the plaintiff the request for production?

      I also have another collector that is sending letters trying to collect from another bank. Should I send them the request for production to them also? (They haven’t sued me... yet)

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      Be,

      Thank you for reading my article. May it be of some help to you in your journey.

      Brian

    • profile image

      Be 

      2 weeks ago

      Very informative read! I will keep this link in my back pocket! Thank you!

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      Dolly1973j,

      Congratulations on a job well done! You hung in there, you did not let them wear you down, you put up a great fight, and you deserved to win. Kudos to you!

      Regarding your question, my first inclination is to say what I would do, and that is, I would send a notice to Comenity/Serta and inform them that, since they sold all rights to this alleged debt, they have no right to report it to a credit reporting agency. However, they might just say that they are merely reporting what they did with the account. You might need an attorney to get them to see the light, since selling their rights to the alleged debt removes their rights to collect further on it, and that, in my opinion, should also include reporting it to any credit reporting agency.

      Brian

    • profile image

      Dolly1973j 

      2 weeks ago

      Hello Mr Brian Gray, it has been a while since I have been on here but I figured I would give you a bit of a break from me. Oh, and by the way the Plaintiff did not show up to the hearing and the judge did not seem very happy and he dismissed the case. So now I'm on to my next removal on my credit report and with your guidance I'm sure it will be a another success. This is between Comenity/Serta whom are the original debtors, they then sold it to Midland Funding and Midland Funding does have a consumer first creedo they uphold and debts owed to them can in fact be deleted from the credit bureas if you have a medical conditon with verifiable documentation. I do have MS so I have all of the documentation that is requested and I have sent that cerfied mail to Midland Funding three separate times, with Midland stating they did not receive the documents any of those three times. I finally filed a complaint with CFRP and the first report I included a report and they answered they wanted another report instead and closed the complaint. I put together another complaint and included the documents they had asked for and today June 27, 2018 I receive my answer that they are ceasing all collections, their will be no more further collection activity, their will be no sale of the account.The three credit reporting agencies have been notified to delete this account from my consumer credit files.There will be no sale of the account. A copy of this has been sent to the three credit agencies. Yay!!!! So here's my question. Midland Funding bought this debt from Comenity/Serta. Comenity/Serta is still reporting on three credit bureau's but was sold to Midland. Is their any way to get Comenity/Serta off? This is the last this "bad" mark on my reports. Thanks

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      BlueWall,

      Great job! Kudos to you for persistence and studying well. You deserve to celebrate.

      The court should notify you by mail, but just in case, contact the clerk of the court and see how they plan to notify you.

      Brian

    • profile image

      BlueWall 

      2 weeks ago

      Hi Brian,

      An update: my case was officially dismissed!

      Plaintiff sent me a notice for dismissal in the mail on the day that I was going to send them a CCP 96 request, but I suspended my belief till the case status was changed online. The notice was check-marked "dismissed without prejudice" but the case status online only says "dismissed". Will the court send me an official notice in the mail or do I request it?

      Thank you for your assistance and support!

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      Joe Zacharias,

      Yes, you should know the identity and the official status of the person who served you. I would pay for a one-hour, private consultation with a local attorney to get his or her take on this. And check with the clerk of the court and ask what the procedures are in your locale for service, also, who may serve.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 weeks ago from Pennsylvania

      Charandkids,

      Once you have received the summons, it is too late in most cases to get the plaintiff to respond to the request for production. But, speaking for me, personally, I would still send it, because even if they do not respond to it, it lets them know that you are going to cause them heartburn. And if they do not respond, then I would ask the court for an extension and request that you be given this extension so that you can send the plaintiff these interrogatories.

      If all else fails, ask for production in the court trial. You want the judge to see these demands and see the response from the plaintiff.

      Brian

    • profile image

      Joe Zacharias 

      2 weeks ago

      I was served without a certified mail. Some guy was at my door and asked who I was . He handed it to me and walked away. Is there something I should know ?

    • profile image

      gabesdaddee 

      2 weeks ago

      Charandkids,

      Same thing happened to me. And I find myself in the same situation. Yes you can. Good luck.

    • profile image

      charandkids 

      2 weeks ago

      I never responded to collection agency letter of notice to collect on debt or verify the debt. Now I have to answer a court summons. Can I still send a letter of production to lawyers & Collection Agency via certified/return signature? Or am I to late to ask for that information? And do they have to produce that info to me still? Thank you Char

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 weeks ago from Pennsylvania

      Gabesdaddee,

      Yes, you can.

      Brian

    • profile image

      gabesdaddee 

      3 weeks ago

      Brian,

      Thanks for the information. They want it as proof of residency. I guess I can give a utility bill instead.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 weeks ago from Pennsylvania

      Gabesdaddee,

      I don't know when you would be required to provide a copy of your drivers license. That's a bit unusual in these cases. For what reason is your drivers license being requested?

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 weeks ago from Pennsylvania

      Gabesdaddee,

      When you are asked to provide documents that you do not have, there is no law that says you are supposed to be a record keeper. Simply state that "defendant is not in possession of the requested documents," and do not elaborate.

      Brian

    • profile image

      gabesdaddee 

      3 weeks ago

      Brian,

      I forgot to also ask in my recent question, do I need to provide a copy of my drivers license as proof of residency?

    • profile image

      gabesdaddee 

      3 weeks ago

      Brian,

      Sorry to bother you again, but I am confused if I should use the "Defendant is without..." to a question in Certified Answers. The question is asking me to attach all documents. Obviously I do not have these.

      Is it appropriate to answer that way? Thank you very much for having such a great site and for you helping all of us.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 weeks ago from Pennsylvania

      Charandkids,

      You're welcome. Good luck to you.

      Brian

    • profile image

      charandkids 

      3 weeks ago

      Thank you. I will send the request of production to the plantiff (lawyers). What I found is the lawyers are in Nashua, NH, yet they gave the Las Vegas, ND address on the court papers. I googled the lawyers names and will send my request to the Nashua address as well as the Nevada address. Thank you for the interesting read on this, very insightful. Char

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 weeks ago from Pennsylvania

      Charandkids,

      A request for production is sent to the plaintiff, not the court (or judge). You can show in court that you sent a request for production, especially if you received no answer, but you don't want to wait until you are in court to send this. If you get to court, and you have not had the opportunity to send a request for production, I would introduce the request right then and there by telling the judge that you are not a lawyer, and that you are simply trying to defend yourself and are asking for your right of due process of law. If necessary, if the judge does not allow this indulgence, ask for an extension so that you can properly request production and prepare to defend accordingly.

      Brian

    • profile image

      charandkids 

      3 weeks ago

      I received court papers from lawyers who are suing me for credit card debt. They attached Exhibit A which is just a typed up paper saying the following: Exhibit A: I had credit account with name bank, showing account number last 4 digits. That I knew or should have known from account statements to timely dispute or otherwise repay charges. Attached statements (there are none, Just on court document) of balance owed. When and amount I last paid on credit card. When collection company acquired all rights, title, and interest and is the owner of the account by way of assignment. See attached exhibits appended hereto, which is incorporated by reference herein. Demand of payment by collection agency back in December.

      My question is can I still send a request of production to lawyers and judge? Your help in this matter would be greatly appreciated. I understand you are not a lawyer. Im just looking for clearification on request for production letter and if Im still able to send one. Thank you. Char.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      3 weeks ago from Pennsylvania

      Thebammy,

      Why they think that they can get away with this is puzzling. They have to sue you in the county in which you reside. If you can, I would recommend speaking with a local attorney, even if all you do is pay for a one-hour, private consultation. It will be money well spent. If you cannot afford that, I would recommend contacting the clerk of the court in which they are suing, and file for a motion for objection to venue. This tells the court that the plaintiff was shopping around to make it hard for you to appear, thus attempting to guarantee a default judgment for the plaintiff. List this as part of your reasoning to have the trial moved back to your locale.

      Here is an interesting article for you to read on drafting answers:

      http://skibalaw.com/how-to-draft-an-answer-to-a-de...

      Brian

    • profile image

      thebammy 

      3 weeks ago

      Brian, I can not tell you how long I have searched the web for some insight- and thank you for delivering. Although my dilemma is not only ongoing, its like nothing I have ever seen before.

      To summarize, my wife and I have "Loyalty status" with Ford. (allegedly)

      one of our 3 cars, which my son was driving had to be returned, as ford refused to refinance to 0% as promised. Both of our other cars are 0% interest.

      Now the crazy part, we get served in August of last year, and were given a time frame to respond, I did so in a timely fashion, and after 6 months, never heard back. This occurred in Ellis County Texas where we live. 6 months later, no further action in the case has happened.

      In April of this year, we receive a Letter from a Tarrant county court (1 hr away) where we neither live, nor purchased the vehicle from Ford. That all occurred here in Ellis county. In April this year, we receive a signed order from Tarrant county judge "reinstating" a case we did not know was pending. We then receive a letter of the request for reinstatement from the lawyer/debt collector, citing the cause no. for Ellis county on front page, while citing Tarrant county cause no. on all other pages. So it would appear they are attempting to sue us in two counties at once for same alleged debt. We were never served a petition for a case in Tarrant county, and never received anything requesting a response at any time in Tarrant county.

      I am at a loss, and this battle in two counties is an obvious hardship, plus I travel for a living.

      if you could share any thoughts on this, it would be greatly appreciated. it has been suggested to me that I concentrate on getting this dismissed in Ellis county, and if judgement occurs I Tarrant county, that I should sue in federal court for damages. I am not after damages, am looking for having my life back. All of my time has been dedicated to fending this off.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      Jamie Thomas82,

      I would file a motion requesting that the court grant a trial, wherein the defendant will be given the right of due legal process and the opportunity to rebut the allegations made by the plaintiff. I would also suggest paying for a one-hour, private consultation with a local attorney to see what they might advise.

      The plaintiff is trying to get around having to go to trial, which suggests that there is a weakness that they are hoping does not get tested in court by further investigation. Don't let them get away with this game. Speak with an attorney...soon.

      Brian

    • profile image

      JamieThomas82 

      4 weeks ago

      I followed the suggestions on responding to the complaint. The plaintiff responded again asking for "Motion for Summary Judgement and Memorandum in Support". In their response it says "Defendants answer contains only general denials and states no issue of fact for trial. The law is well settled that the defendant may not rest on mere denials or agreements in the pleading but must set forth specific facts showing that there is a genuine issue for trial. Plaintiff has set forth documentation of the account and demands the defendant come forth with any evidence which defendant may have to refute the debt. There are no genuine issues of material fact and the plaintiff is entitled to judgemental as a matter of law.

      How do I respond to that motion?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      John,

      Contact the clerk of the court and explain to them what happened. You are entitled to due process of law, and you were apparently not properly served. They have to give you sufficient notice.

      Brian

    • profile image

      john 

      4 weeks ago

      i recieved an envelope from the court stamped jun 14. inside is my court date scheduled jun 5th. what can i do if the dare has passed did i get a judgement since i did not attend?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      Anna,

      Don't be afraid to be in court to defend yourself. If need be, try attending some cases in advance so that you can see what it is like to be in there. And, on the day you go for your trial, remember that the judge is your neighbor, not your enemy, so treat the judge as if you already know him or her....with respect, of course.

      What to say to the judge? Nothing more than what you are prepared to say, and that is, after much study, you write out an outline that you memorize and follow in presenting your case. Think of all the items that offer a good defense, and present them in order. Have a good strategy to knock down the claims of the plaintiff. Be prepared by anticipating their claims, and have counters to them ready at hand. That is what you say in court, that is what you do in court. Anticipate and prepare.

      If you spoke with an attorney who did not offer any hope, keep looking until you find one who does.

      Good luck to you,

      Brian

    • profile image

      Anna 

      4 weeks ago

      Thank you Brian for your response! I have already spend hours on this site. I am in Texas and my court date is Aug 14 at Justice of the Peace. I cannot ask for discovery or production as this has to be approved by the Judge.

      I’m just not exactly sure what to say to the Judge and why I’m defending myself. I’m fearful my nerves with force me to buckle and I can see myself trying to settle. I spoke with an attorney today and he didn’t seem very confident in my case.

      I’ll will continue to post about my journey through this.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      Anna,

      If it was Capital One coming after you, they would supply you with statements from the very beginning, an absolutely accurate accounting of the amount owed, and they would attach a copy of the original agreement. My bet is that you are being pursued by a junk debt buyer with no connection to Capital One.

      Brian

    • profile image

      kopykid 

      4 weeks ago

      Hello yes I have two cases with that portfilio recovery after reading this article should I use the same way of think on this matter. I seen both account were charged off by the main one and they picked them up for little of nothing. Any ideas to fight this matter all helps thanks

    • profile image

      Anna 

      4 weeks ago

      Is Scott and Associates working for Capital One in my case? I can not determine if they are actually representing them. I asked for a DV and they sent me 4 of the last statements before it was charged off. Nothing else.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      Jaypeak,

      It usually depends on the amount owed, because this determines whether or not the amount is worth pursuing due to legal costs in doing so. Small balances usually get written off and the debt sold to a junk debt buyer. In your case, I assume that the amount is sufficient to cause them to think that it is worth their time using their law firm. I would still research to make sure that it is indeed the original creditor coming after you. It is difficult to do, but once you have sent them a request for validation of the debt, their ability to completely verify every entry on that account will assure you that it is indeed the original creditor.

      Brian

    • profile image

      jaypeak 

      4 weeks ago

      Brian,

      Thank you for the response. You mentioned that they may not have sold to a junk debt buyer YET. Do they always sell to a junk debt buyer? Have you heard of credit card companies going after balances through use of their own attorneys?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      Jaypeak,

      From what you are telling me here, it would appear that Capital One is doing this within their company. It, therefore, would not be sold to a junk debt buyer yet. If you send them a request for validation of the debt, and they send you a complete validation, you can assume that it is indeed them. If that is the case, you may want to ask them for settlement terms.

      Brian

    • profile image

      jaypeak 

      4 weeks ago

      Brian, this article is a lifesaver!

      I just got a letter from Capital One stating that my account was charged off but instead of being sent to collections, it is being assigned to Capital One's Recoveries Department. They are saying that if I do not arrange payment, that it will be sent to an attorney in my state of legal action.

      Is Capital One stating that they would prosecute this directly with me and not sell this debt?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      Mike R.,

      Federal student loans are a different ball game. A default on one of these is difficult to defend against, because it will be the government coming after you with accurate records. However, they can make mistakes, so examine the details of their claims to see if there are any discrepancies. At the end of my blog, I just added a very valuable document written by Peter A. Holland. It may be of some help to you. Here is the link:

      http://digitalcommons.law.umaryland.edu/cgi/viewco...

      Also, speak with a bankruptcy attorney to see if there are either negotiated settlement options for lower amounts, or any other options that we don't know about.

      Brian

    • profile image

      Mike R. 

      4 weeks ago

      I defaulted on a consolidated federal student loan, which went to collections. The company produced paperwork with my signature. What should I do next?

    • profile image

      Katie Wheat 

      4 weeks ago from South Carolina

      AshleyJ,

      Along with what Bryan said, you need to determine the type of interest being charged. Georgia law, like most states, allows for post-judgment interest. It is interest that is added from the date of the judgment. Here's the GA law.

      OCGA § 7-4-12 (a)

      (a) All judgments in this state shall bear annual interest upon the principal amount recovered at a rate equal to the prime rate as published by the Board of Governors of the Federal Reserve System, as published in statistical release H. 15 or any publication that may supersede it, on the day the judgment is entered plus 3 percent.

      Notice that your state statute allows for 3 percent added to the prime rate. Go to the Federal Reserve website to determine the prime rate on the date the judgment was issued and add 3 percent.

      If they are attempting to add interest other than post-judgment interest, please do not attempt to handle this on your own. You should contact a consumer attorney. Note that some states allow a "statutory rate of interest". An attorney in your state could determine if the interest they are attempting to collect is legal.

      You don't have to hire the attorney. Just schedule a consultation. You can contact your state bar association or the National Association of Consumer Advocates. Both have websites that would allow you to locate a consumer attorney in your area.

      If Cavalry has violated the FDCPA, a consultation with an attorney would be well worth the fee for a consultation. In addition, you would not only have a claim against Cavalry, you might also have an FDCPA claim against Cavalry's attorney.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      IJOP,

      I believe they are junk debt buyers, but to be sure, here is a link about them that is well worth reading:

      https://www.lemberglaw.com/radius-global-solutions...

      Yes, I would send them a letter requesting validation of the debt.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      4 weeks ago from Pennsylvania

      Ashley J.,

      The U.S. Fair Debt Collection Practices Act says collectors can add fees or interest only if the amount is "expressly authorized by the agreement creating the debt or permitted by law." That requires having a copy of the original card agreement to prove the interest is permitted, consumer advocates argue. Also, you would need to know what your State permits. Here is a great article to help you understand your remedies:

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

      I hope this article will help you to see that you might have a chance at challenging them.

      Brian

    • profile image

      IJOP 

      4 weeks ago

      Hi Brian, my account is showing as charged off when logging into my Capital One account and I am getting calls from Radius Global Solutions asking me if I'd like to make payments or settle my debt.

      A. Is Radius a junk debt buyer or just a collection agency?

      B. Should I send a letter requesting Validation of Debt now to Radius Global?

      Thanks for your help!

    • profile image

      Ashley J. 

      4 weeks ago

      Well I'm back. As if losing wasn't enough I just discovered that the Calvary "Schatner Portney" is charging me INTEREST on the amount that the judge ruled for! Is that possible!? I'm in Georgia and I am completely defeated by this. Hope to hear from you soon .

    • Hanavee profile imageAUTHOR

      Brian Gray 

      5 weeks ago from Pennsylvania

      John Albert Dumme,

      Unusual. That it was not sent certified mail, return receipt requested, or hand delivered by a sheriff, is odd. My best advice is to contact the clerk of the court mentioned and ask them about why it was not sent via proper legal channels, ask them why the date discrepancies, and ask them what their protocol is. Do this right away, because something is unusual about all of this.

      Brian

    • profile image

      John Albert Dumme 

      5 weeks ago

      I received a envelope, non certified, telling me tha I was being summoned into court. Todays date is June 7th this year. I received the envelope June 6th, this year. The date on the summons is March 2018. How do I respond to a date 4 months after filed with court. There is no appearance date anywhere. The only reference is I have 30 days from receiving notice.. There is no official date anywhere. Thanks John.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      5 weeks ago from Pennsylvania

      Gabesdaddee,

      No, you only need to send the answers to the plaintiff. Nonetheless, keep copies in case you need them in court.

      Brian

    • profile image

      gabesdaddee 

      5 weeks ago

      Brian,

      Great article and great advise! Just one quick question. When answering the interrogatories, do I send a copy to the court too?

      Thanks for everything.

      Gabesdaddee

    • Hanavee profile imageAUTHOR

      Brian Gray 

      5 weeks ago from Pennsylvania

      Faillite01,

      Contact the clerk of the court and ask them for the forms for filing this motion. Chances are that they are done with you, but you never know for sure. No harm in asking for peace of mind.

      Brian

    • profile image

      faillite01 

      5 weeks ago

      Brian,

      First of all, I would like to say thank you for giving us suggestions on how to handle those junk debt buyers.

      I supposed to have a trial on my case with Midland today. To my surprise, I received UPS Legal Express Envelope today with a notice of dismissal (Midland dismissed the case without prejudice). Since they have not produced the documentation I have requested in three occasions, is it possible to file a request for dismissal with prejudice? I worry that they will file another lawsuit in the future.

      Thank you,

    • Hanavee profile imageAUTHOR

      Brian Gray 

      6 weeks ago from Pennsylvania

      RobertC22,

      You only respond to the plaintiff, not the judge or the court. You will respond to the judge once it goes to trial.

      Brian

    • profile image

      RobertC22 

      6 weeks ago

      thanks for your response. yea, I think its pretty crazy that they are asking me to admit guilt off the bat lol...they must have a well-oiled machine to even bother with all this paperwork for such a low dollar case.

      alrighty, so I'll respond in writing, send the response to the law firm saying I have insufficient info to answer/admit to these, along with request for production and right of subrogation? I don't know the judge, so i cant send it to him/her...

      maybe just send it to the law firm and not the court, then, and see how they respond?

      thanks

    • Hanavee profile imageAUTHOR

      Brian Gray 

      6 weeks ago from Pennsylvania

      RobertC22,

      If you have not been served a summons yet, you might assume that it is in the works. What the plaintiff is trying to do is to get an admission of guilt without having to produce the work that really is required of them, not you. They want you to be your own judge and jury. The burden of proof always rests upon the plaintiff, so make them produce their evidence for their claim. After all, in order to file a suit in the first place, the plaintiff must have in hand sufficient evidence to make their claim, otherwise, they do not have legal standing in court. Now they come asking you to prove their case, and that is ass backwards.

      So, do not try yourself and condemn yourself. They made the allegation, they have to have the proof. For their questions that ask you to incriminate yourself, answer with our standard response:

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

      With regard to the question of whether or not you were issued a card, or used said card, make them prove that you were issued a card, that this account was your account, that the amounts alleged are fully proven by an accurate accounting, etc. You don't know if this was your card, because you don't know for sure if they have given you the correct account number, or if they have given you the matching purchases and dates. Insufficient information means just what that statement I just gave you says...insufficient information or knowledge.

      You are not required by any law to maintain records, so the fact that you cannot recall all of the details is not illegal. What is illegal is for a plaintiff to file a suit without sufficient proofs on hand to make their claim. They should not have to ask you to now prove their case.

      And, finally, ask them to provide legal proof of their right of subrogation of the debt.

      Brian

    • profile image

      RobertC22 

      6 weeks ago

      That is an awesome story...I'm up against ..similar parties.

      Except I have no clue what is going on with my case. I served the law firm my denial in the mail and they sent me a "request for admissions" and also "request for production" asking me for statements, etc. and also asking me to admit or deny if I was issued a credit card, received statements, etc

      Um..? Isn't that supposed to be my move against them? Do I have to reply to these requests?

      Also, I haven't been mailed anything regarding any type of court date and I looked online and there isn't any future hearing date or anything like that under my case...it just says its "pending" and it has the dates that I filed my answer in court, etc.

      Any advice?

      thanks so much

    • Hanavee profile imageAUTHOR

      Brian Gray 

      7 weeks ago from Pennsylvania

      ADH-Appreciates-U,

      Great job! Congratulations! And thanks for sharing your very positive experience. You have shown others that it is possible to stand up to the bullies. I hope you are celebrating, because you certainly deserve to.

      Best Wishes,

      Brian

    • profile image

      ADH-Appreciates-U 

      7 weeks ago

      Mr Gray, I have to say Thank You! It was your article, your posts, your answers and your knowledge that allowed me to persevere in my case to the hearing date, where the Plaintiff called in a dismissal on the date of trial. I am no stranger to the court room, I wanted to be a lawyer but life took me in another direction; but I never lost the desire. So, when LVNV Funding sued me over a Credit One Bank default, I was up to the challenge. When the lawsuit came in I began to research my options and was blessed to find you and your article. As you requested, I read it over and over, I studied, I checked my local rules and I worked my case Pro Se.

      Briefly, LVNV Funding issued a lawsuit with a one page exhibit of the final statement and their prayer for collection of the debt. My first response was directly from your article, with a request for verification and we proceeded. At my first pre-trial, the lawyer handed me a copy of the contract (no signature or date), a "Bill of Sale", a "Transfer of Acct Statement" and a "simple" spreadsheet with approx 30 lines of redacted information and one line which supposedly showed my acct info. I was concerned that this info did not got thru the court so in all my future responses I made sure that every document that they sent me became a part of the court record. By my second pre-trial I was only requesting "right to subrogation" of the acct. I did not receive this documentation. At my third pre-trial, I advised the magistrate that I still had not received the documentation requested and that I would not settle unless the lawyer showed me proof of right to subrogation.

      The lawyer told me that he understood that I did not know how the industry worked and that we would return for trial, he would present his witnesses and that we would just have to let the chips fall where they may. I agreed because in my mind I had done enough reseach that I was confident; based on your instruction and examples, that I would prevail.

      So, it was trial day and although prepared I was still nervous. I got there early to check in. It was odd because there was no docket with my name on it, the clerk wrote it on a post it and asked me to have a seat. She appeared so after and told me that the lawyer had called that morning and requested that the case be dismissed. I was stunned. She had to repeat it again. I said thank you and proceeded to my car.

      I just wanted to post this because I want to reassure someone else who may be reading these posts and second guessing their ability - You Can Prevail. Hammer the "right to subrogation"! Mr Gray, said it, it did it and I prevailed, you can too.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      7 weeks ago from Pennsylvania

      BlueWall,

      You did exceedingly well. Kudos for a job well done. You upset the plaintiff, and that is good. The judge would have naturally given an extension to either side requesting such, so he was not giving you any clues. However, it will be interesting to see what the plaintiff does now, because they have to offer proofs for their assertions.

      Brian

    • profile image

      BlueWall 

      7 weeks ago

      Hi Brian,

      Haven't been on here for a bit because based on your previous response to my situation, I was determined to find a "loophole" to fight the facts deemed admitted noose around my case. I researched like crazy trying to find caselaw where defendants had won inspite of facts being deemed admitted but only found examples in appellate court. However I did find caselaw (not in debt collection cases) where judges pointed out that it was necessary for facts deemed admitted requests to have evidentiary support, otherwise they would be empty, hearsay assertions made by attorneys with no first-hand knowledge of what they were trying to get the defendants to admit to. Essentially saying if judges made quick judgements without looking at the truth behind the assertions then that would degrade the truth-finding efforts of the court making it about convenience and not facts (paraphrasing). Awesome right?

      Anyway, my trial date was quickly approaching and I decided to write a trial brief and submit it to the judge. I basically argued an angle of defense where the JDB's claim couldn't be supported even with facts deemed admitted because the JDB hadn't proved that they were the true assignee of the OC. It was a longshot but what I else could since I didn't want to settle. I also made a note in the brief "gently" reminding the judge that he had granted the motion to deem facts admitted in error becz the JDB's attorney failed to mention to the rent-attorney that they did receive my responses late but timely because it was before the hearing. I enclosed a copy of my certified mail/return receipt with their signature (so glad I spent the money to do this!).

      So long story short, the day of trial we're standing before the judge and after reading my brief, he asked the rent attorney, "Have you read the brief? Did you know about the responses being received?". The attorney was fumbling around and said he wasn't prepared for trial that day based on my arguments, so he asked/begged the judge for continuance. The judge granted the continuance AND also reversed the motion of facts deemed admitted. Honestly, in the moment my head was spinning. Reversing the motion-good, continuing the case to a later date -not sure if good or bad. I said, "Judge, I'm ready for trial today" but he granted the continuance.

      My question is, do you think the judge was sending me a message to hold off my arguments, was he trying to be fair to other side since they were blind-sided by my brief and the motion being reversed? I've read from others to pay attention if the judge is trying to cue you, take the hint if they're trying to "help" you. I would appreciate some insight into this.

      Do you think I should have pushed to go ahead with trial that day and take my chances with my arguments? Now the JDB's attorney know what my defenses are and I wonder if they will try to build tighter evidence, will they dismiss, or have I pissed them off to come at me harder?

      Sorry this post is so long. Thanks for reading!

    • Hanavee profile imageAUTHOR

      Brian Gray 

      7 weeks ago from Pennsylvania

      Stretchem,

      Isn't it interesting that they use the legal BS of "overly broad and burdensome" with regard to your legal and simple request, then they send you an abnormal amount of pages of their own requests that far outnumber your humble little request for production.

      First and foremost, their excuse that your request is overly broad and burdensome is without merit, and I would file a motion with the judge to compel them to answer. They have supplied no compelling evidence to support their denial of your legal request for materials necessary to your defense. See the clerk of the court for these forms and their timelines.

      As to their intentionally overly broad and burdensome request of thirty-plus pages, send back the same answer to all of it: overly broad and burdensome. Furthermore, inform them that you are not required to keep records, and as such, you have retained none that they requested.

      As for any question they ask that obviously asks you to incriminate yourself, use our standard answer:

      "Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim." Use this sentence whenever and wherever it fits, and as often as you want. It does not matter how angry or irritated they get, they can tell it to the judge, and I doubt that he is going to pity them.

      They are playing games with you, trying to wear you down by bullying you with their arrogant abuse of legal BS. Don't play their games, don't give in. Just keep patiently firing right back at them, and for a real zinger, ask them to show their legal proof of subrogation of the debt. Ask them to submit proof that the original creditor did not take an insurance payoff or a tax credit, which would have rendered any selling or buying of this debt illegal. Ask them to prove that this alleged debt is encumbrance free. That should give them a rash.

      Good luck,

      Brian

    • Stretchem profile image

      Stretchem 

      7 weeks ago

      Hi Brian! Thanks for much for sharing your knowledge!

      In a small claims $1500 case, I sent to Dewey, Cheatum and Howe representing the junk debtors Horse Riders the Request for Production as presented in your article. DC&H responded with:

      1, 2, and 3: None in Plaintiff's possession, custody or control...

      4, 5, and 6: Objection, ambiguous, burdensome and fishing....

      They also submitted in the same response a Notice of Confidential Information Within Court Filing, with confidential information to be within the document being filed of: Notice of Filing of Plaintiff's Response to Defendant's First Request for Production to Plaintiff, for which they have checked "Social Security, bank account, charge, debit, and credit card numbers in court records."

      Of course DC&H reattached the last credit card statement that they did have.

      DC&H followed that up with a Plaintiff's First Set Of Interrogatories. It is literally a 30+ page document full of "Request for Admission" questions and statements that range from Who am I talking to about this case? to Provide us with all of your banking and account information for all institutions I've ever done business with over the last 5 years.

      After that, comes the Plaintiff's First Requests For Admissions. That 30 page document includes a timeline that says I signed up for the credit, I paid some of the credit, there is $1500 left on that account, the account was assigned to Horse Riders, so the account is now owned by Horse Riders, so pay us.

      Finally, the last document is the Plaintiff's First Request For Production, where they ask for all of my financial information from near the beginning of time, the original credit application, payment history, etc.

      So clearly they're in the intimidation game. What obligations do I have to answer their interrogatories and requests? Is there a kind, gentle, legal way to respectfully tell them to go pound sand?

      Again, this is a small claims case, and it has already been scheduled for trial. At the pre-trial hearing I told the court I had no contract with the plaintiffs and was not interested in mediation.

      Looking forward to your input. Thank you for all you do!

    • Hanavee profile imageAUTHOR

      Brian Gray 

      7 weeks ago from Pennsylvania

      MGF,

      At this point, I don't see how that you can now claim that this account has not been proven to be yours. However, I would still ask them for an accounting on how they arrived at their amount alleged owed. They cannot just make up a number, so make them account for it.

      Also, I would ask them to show their legal right of subrogation of the debt. Request that they show that the original creditor did not receive either an insurance payoff or a tax credit.

      Brian

    • profile image

      MGF 

      7 weeks ago

      Hi Brian,

      Thank you for this very informative post and I wish I had found it earlier! I am being sued by Calvary in two different lawsuits for around $10,000. I have already responded to both law groups involved and stated that I do not dispute the $435 dollars shown as purchases in the billing statements that they provided, but I do dispute the remaining amount. Now that I have admitted to some of the debt, can I still use Failure of Consideration and/or Lack of Privity as a defense?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      8 weeks ago from Pennsylvania

      Karen K,

      I would wait thirty days, then make the request.

      Brian

    • profile image

      Karen K 

      8 weeks ago

      My case was dismissed without prejudice. Question ...can I now request it be removed from my credit report? I ask bc they could technically come after me again.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      JRjr,

      If you were never properly served a summons, then you need to contact the court and file a motion to have the judgment set aside and a new trial ordered. The court will want to know why you were not properly served, which proof should rest upon the plaintiff to demonstrate. Ask the clerk of the court for guidance in filing the motion.

      Good luck to you,

      Brian

    • profile image

      JRjr 

      2 months ago

      Brian,

      First, I want to thank you for this article. I’m hopeful that I can try these steps but I do have one concern. I was never served any court documents. I would’ve gone to court if so. With that being said, I have now received a notice that my wages will be garnished. Is there still any chance that I can fight this? Thanks again in advance!

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Artilari,

      Sorry for my late response, but I was away on vacation and just got in. Magisterial courts vary from State to State, but it would appear that your State requires leave of the court. Ask your clerk of the court for the appropriate forms to file your motion, and ask the clerk what the filing deadlines are. It may be requisite for you to bring this to the attention of the judge and explain to the judge that you are acting pro se (as your own lawyer), and that you were not aware that you needed permission. Then say that you would like to respectfully request this information and would like to follow the courts permissions in doing so.

      Good luck to you,

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      CamelJockey79,

      Sorry for the late response, but I was away on vacation and just returned. It has been years since I studied the laws regarding subrogation, but the one thing you want to keep in mind is this; you have to artfully raise doubts that are worthy of requiring an answer. For example, if you accuse the plaintiff of violating a law, then your allegation makes you the plaintiff for that question, thus requiring you to offer proof for your allegation. However, if you say to the judge, "Your Honor, I believe that it is possible that the practice exists wherein a credit card company receives an insurance payoff, or a tax credit, for a debt that has been written off, and if this is the case, then this would render the alleged debt off limits for selling or collecting thereon by any other entity than the one who paid the debt in full. Thus, I would like to ask that the plaintiff show that the alleged debt has no encumbrances, or that the plaintiff has full and legal right of subrogation of this debt."

      The judge should then rightly ask the plaintiff to answer the request. However, the artfulness of the questions, and the disposition of the judge are two key factors in what follows.

      To really understand the law with this regard, I would contact the Consumer Financial Protection Bureau and ask them which Federal agency would have the answers.

      Good luck to you,

      Brian

    • profile image

      Katie Wheat 

      2 months ago from South Carolina

      artilari,

      Read your magistrate court's rules of civil procedure. There are some magistrate courts (Georgia and Texas immediately come to mind) that require permission from the court to request discovery.

    • profile image

      artilari 

      2 months ago

      I filed a request for documents and sent to the attorney's office and they responded with a letter stating such request is disfavored by the magistrate court and are considered nullity when filed without leave of court. Is this true? What do I do now? My court date is in 3 days?

    • profile image

      CamelJockey79 

      2 months ago

      Hey Brian, in regards to getting Cavalry to prove that the original creditor did, or did not, take a payoff or tax credit....is there an actual law that I can cite to the judge?

    • profile image

      Katie Wheat 

      2 months ago from South Carolina

      BlueWall, are you in Limited Civil? Depending upon the timeline, review CCP (California Code of Civil Procedure) 96 and 98. Those rules would be in your favor.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      MITZ90,

      That all depends on the strategy you take. It is an ace, and sometimes you hold them, and sometimes you hide them.

      Brian

    • profile image

      MITZ90 

      2 months ago

      Thank you I will follow that, I was thinking because it was an acquisition of everything it would be a little different, not just buying a a bad loan. Is it advisable to show attachments of my credit report that now shows Capitol One as the debtor?

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      MITZ90,

      I would attack this on the grounds that you were never given a revised contract to agree to Capital One becoming your creditor. This is very complicated, and lawyers could argue both sides of this. In your original contract, there is no doubt a clause that allows the original creditor to transfer the account to another credit card company, but that clause would also state that you have a right to be notified of any such change, and, equally, the right to withdraw. This would still leave you owing the balance, important point to remember. Now, the opposing side would argue, well, this is not the case. Capital One bought the bed debt, not to service the customer, but to collect on the debt owed. Then, if this were argued, one could argue back that there must be a subrogation agreement, and they might then insist on requesting proof of this arrangement. Further, one would ask, how was the debt satisfied to the original creditor? But, looking at this even more, one has to assume that this is a larger credit company simply buying out a smaller one, and in the process, taking on all debts, past and present. This coin has two sides, so, for every argument, there is a flip side argument.

      I hope you follow my reasoning. A good lawyer hopes that the opposing side will not be prepared for his argument, but he prepares for a good rebuttal, nonetheless.

      So, if it were me, I would send a request to the plaintiff asking them to show their legal right of subrogation of the debt, and I would proceed from there.

      Hope this helps,

      Brian

    • profile image

      MITZ90 

      2 months ago

      Hi Brian ~

      First of all, I would like to thank you for the service you provide. This has been very informative. I believe my case is a little different, and would like to get your opinion on this case. I had a debt with Cabela’s (World Foremost bank) that I defaulted on, I was contacted by my local courts that a lawyer has filed on their behalf in June of 2017, I responded and we started the dance. My last response was in October, and I requested information on the debt since World Foremost had been acquired by Capital One (for Cabela’s). I have not heard anything else, until this week, when the courts sent a notice to allow me to respond properly. I pulled my credit report, and it shows as Capital One / Cabelas, and closed as a charge off bad debt profit and loss write-off.

      Do you feel that I have should be able to request that a motion for the case be dismissed without prejudice, based on foremost not owning the debt anymore. Now, this notice has not come from the lawyers, but from the courts.

      Thank you!

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      BlueWall,

      Hind sight is always 20/20. Sitting in on cases can often give us insight into how best to present our own cases. And it can help a person acclimate to being in court, thus reducing the nervous factor.

      Good luck to you,

      Brian

      P.S. In my opinion, your judge sounded like a hack crony, one who is unable to get out of the "same ole same ole" attitude that gives these judges the feeling that the junk debt buyer is somehow morally and ethically right. They end up siding with the blood suckers, and they have no remorse, thus making them just as low as the blood suckers they are siding with. Hard to beat that team, but you can.

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Carl W.,

      If you are going to win your case, you need to relax, focus and plan. Play devil's advocate and try to anticipate the line of attack that the plaintiff is going to use, and be ready for them. And go after them with everything my article and the posts on this site provide you. If you read the many posts on here, I know there are a lot of them, but if you take the time to study them, you are going to learn a lot, and right now, studying and applying should be your focus. Also, you will see how so many people won their cases without an attorney, so copy their strategies. This is your free library.

      Brian

    • profile image

      BlueWall 

      2 months ago

      Brian,

      Considering I immediately felt defeated after the hearing, you saying that I "did well" means alot. What doesn't get talked about a whole lot in this process of fighting back is how much of a psychological warfare it is on the defendant. The laws, courts and civil procedure seems to favor debt collectors over consumers who are pro se and little by little this realization begins to break you to where you just want to give up and settle. I am proud that I had the guts to stand before the judge - albeit an embarrassing five minutes, but for the first time I feel fear of the pending judgement.

      Yes, I realize that there are "loopholes" or options to counter what happened today and your advice to seek help from an attorney who knows the judge is good advice. I did try to research the judge's profile and prior cases to gauge what he would be like but only found references to criminal cases. If I could go back in time, I would have tried to sit in on a few of his cases at the court house which would have helped no doubt.Thanks for the support!

    • profile image

      carl w 

      2 months ago

      i know i need a lawyer but i cant afford one and I'm no English teacher but my last question was really messed up because i was in a hurry and a little distracted sorry:(

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      Carl W.,

      Judging from your syntax, I don't think English grammar is your forte, and I say that not to be critical, but to be honest. The way you wrote this paragraph tells me that you absolutely need the assistance of a competent lawyer. This is no game, and without a very good grasp of English grammar, you are going to lose. I know no other way of saying this.

      I am personally having a difficult time trying to fully understand what you are asking here, and i am on your side. So, here is what I can at least say. If there is no court date on the summons, then that is coming later. For now, you need to make clear to the clerk of the court that you are intending to appear, and you simply want to know how you let them know this.

      I am not sure what you meant by order for production, unless you meant a request for production, and that does not go to the court, it goes to the plaintiff.

      I hope that you will seek competent legal help. These cases are complicated, and they absolutely need a strong grasp of English grammar.

      Brian

    • Hanavee profile imageAUTHOR

      Brian Gray 

      2 months ago from Pennsylvania

      BlueWall,

      You did well, considering all, but I would immediately try to pay for a one-hour, private consultation with a local attorney who is familiar with this judge. You do have some legal loopholes to use here, but you need competent legal help to make them happen.

      Brian

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