You Can Beat Credit Card Debt Collectors

Updated on February 18, 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:

"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.'"

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!

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/

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    • profile image

      Icanton 22 seconds ago

      Brian

      This question may seem a bit rudimentary and naive. But in my opposition to plaintiff's motion for Summary Judgement, can I cite cases from other states, or must I use only cases from the state where I am being sued?

    • Hanavee profile image
      Author

      Brian Gray 11 hours ago from Pennsylvania

      Icanton,

      To reference any case that has been made public, you simply need to do a Google search with the key words and the name of the State. However, if the case is in district court, then my best advice is to retain an attorney from that State. You cannot fight this one on your own. If you cannot afford an attorney, then at the very least, pay for a one-hour, private consultation with one. Magisterial court, you can go it alone, but once a case has been moved up to the higher levels, your lack of legal training will be your undoing. I cannot emphasize enough the importance of having an attorney for this level of court procedure.

      Brian

    • profile image

      Icanton 19 hours ago

      Brian. Thank you for your reply. The case is in a State where worked, I am not a good resident / or residing there now? I have always retained my resident status in another state where I am registered to vote, have registered cars / insurance and pay taxes. The case is in district court.

      The cases referenced in Rodney Miner’s opposition are from the state of Idaho. Where can I research cases that correspond to the state I am being sued.

    • Hanavee profile image
      Author

      Brian Gray 19 hours ago from Pennsylvania

      lcanton,

      As I mentioned in an earlier response, read Rodney Miner's case notes. I think they are going to be identical to your case.

      Brian

    • Hanavee profile image
      Author

      Brian Gray 19 hours ago from Pennsylvania

      Derek,

      What you received is a summons. You are being sued. Answer the court by sending your response to them before the deadline, which is very important. Do not miss this deadline! There should be a card for you to sign and return, that is the proper legal form. If it has not been provided, contact the clerk of the court, and ask them what papers will suffice. But, let me emphasize the importance of not missing that deadline. Miss it, and the plaintiff can get a judgment by default.

      Good luck to you,

      Brian

    • Hanavee profile image
      Author

      Brian Gray 19 hours ago from Pennsylvania

      lcanton,

      Research the materials that were submitted by Rodney Miner at the end of my article. There is quite a bit of useful information on there. I see a lot of parallels in your case and Rodney's. I hope this is of some help to you.

      By the way, when you say that the case is in a State where you worked, are you not living there now? Because, if this is in magisterial court, they have to sue you where you live now.

      Brian

    • Hanavee profile image
      Author

      Brian Gray 19 hours ago from Pennsylvania

      Susan Connor,

      I am not sure about the particulars in your case to be able to determine the difference in "account vs breach of contract." To sue someone for failing to fulfill an account ledger is essentially the same as contract law, in that you had an obligation, via contractual agreement, to pay an amount of money. To me, not paying the agreed amount of the obligation is the same as breaching a contract. I really don't see any difference, but maybe there are some particulars that I am missing here. Nonetheless, they have to show that you had a contract, that your signature is affixed thereto, and that you agreed to pay THEM according to the terms of this signed contract. And don't forget to demand that they show legal right of subrogation of the debt.

      As for their sending you the wrong contract, using the original is the legal defense. If you did not agree to changes to this original contract, then they would have to show how they legally substituted another one, especially one without your signature.

      Brian

    • profile image

      Icanton 25 hours ago

      Hello Brian. CACH purchased a BofA account that had been discharged. The case is in being heard in a state where I worked at one time but was never a legal resident. I am now in the process of writing an opposition to a Motion by the defendant for Summary Judgement. I was able secure a continuance for a court date in two weeks.

      Having read all the information and entries of this blog, what is the best way to find court cases a particular state support my opposition and construct my memo of points? The information provided on this page was very helpful.

    • profile image

      Derek 26 hours ago

      Brian, I received a summons today from the court in Virginia saying I had 21 days to respond in writing, in proper legal form but no court date? Will they set a court date after I respond? And what is proper legal form? It says appearance is not required by this summons???

    • profile image

      Icanton 26 hours ago

      I was granted a continuance on a Motion for summary judgement regarding a discharged BofA credit card that was purchased by CACH. The case is in a state that I had worked but was not my legal residence. I am now preparing my opposition to plaintiff’s Motion for Summary judgemen. Court date is two weeks away. What is the best approach to proceed? How can I locate particular cases online to support my position of opposition?

    • Susan Connor profile image

      Susan Connor 28 hours ago

      Thanks Brian since we're in Arbritation it's impossible to get an attorney our court date is in a few weeks. What's the difference if they are suing on account vs breach of contract that's where I'm stuck on finishing this case. Your help will be very welcomed. Also they should of sent a 2005 agreement but sent a 2010 with my name on it. I'm pretty sure Amex didn't change the agreements in 2010 with consumers info on each one. This means they forged it. I've been looking for one and found a 2009 any help on this would be great proving in 2010 the agreement they sent is a phony

    • Hanavee profile image
      Author

      Brian Gray 44 hours ago from Pennsylvania

      Susan Connor,

      Those robo-signed affidavits are valuable and powerful evidence against the plaintiff. Also, the agreement contract having the wrong year for commencing is damning. It would be wonderful if you had a good attorney on hand to properly utilize all of this. I think you have a strong case against them, but it can be daunting sometimes to go up against people who are legally trained and skilled at working the laws to their benefit and against you. I sincerely hope you prevail.

      Brian

    • Susan Connor profile image

      Susan Connor 2 days ago

      Thanks but the law firm denied being attained by NCO. I've been down this path before with Amex. After we settled out of court the check we wrote to Amex was cashed by Nco.on the day the check cleared another attorney claimed they had a judgment against us when we just paid. Now the same attorney is claiming they were retained by Amex on this new case and I know they are lying. I do have 500 affidavits from Amex I've collected all robo signed and plan to use them as evidence of fraud.zwicker hasn't used a affidavit yet and will throw it in at the last moment. We are in Arbritation which Zwicker picked. The agreement contract they sent me is the wrong yr when the card was opened and has missing pages. The billing statement are out of order and doesn't explain how the amount they came up with. The person who sent the production of documents isn't notarized

    • Hanavee profile image
      Author

      Brian Gray 2 days ago from Pennsylvania

      Na Wao,

      In magisterial court, some rules will vary from those at the higher court levels, and while it may be possible for them to ignore a request for production that was sent to them in writing, it may be possible to demand those same answers once you are in the court room. I would request these in court, and I would tell the judge that I sent these as interrogatories to the plaintiff and received no answers. To me, that would mean that they do not have the answers, and if they do not have the answers, then they should never have filed suit, because the law clearly states that, in order to file a suit, the plaintiff must have sufficient proof at hand. Without sufficient proof at hand, the plaintiff lacks legal standing, and the case should be dismissed with prejudice.

      Brian

    • profile image

      Na Wao 2 days ago

      Brian Gray:

      No, they have not file some sort of (or any) addendum to this case. We just started. I'm thinking of taking them to court to get it squashed just in case anything about them come up tomorrow. I want a court judgement to stop any thing from ever rising on their end in the matter. I may have to file a motion to compel in court. Is that a good step to scare them off me since they may not have any document to show.

    • Hanavee profile image
      Author

      Brian Gray 2 days ago from Pennsylvania

      Na Wao,

      One of the things you hit them with in court is the list of their discrepancies.

      The "fraud affidavit letter" sounds like they are asking you to state that fraud must have been committed in your name, which is not what you are saying when you are simply asking them to prove their allegations. Until they have offered sufficient proofs for their allegations, why should you accept their allegations as fact?

      The fact that they are showing two different companies in their allegations should send up red flags. I would focus on these discrepancies and use them to show that these guys don't know what they are doing. They cannot sue you for allegedly owing one company, then change that to another company without ending one suit and filing another. Or have they file some sort of addendum to this case? Without knowing all of the particulars, I really can't say much more than this, but as for suing them, that decision has to be yours, and for that, I would most assuredly consult with a lawyer.

      Brian

    • Hanavee profile image
      Author

      Brian Gray 2 days ago from Pennsylvania

      Mike,

      When you file a motion to compel, you give the opposing party 30 days in which to comply. If they fail to comply, you then ask the judge to dismiss with prejudice.

      Brian

    • Hanavee profile image
      Author

      Brian Gray 2 days ago from Pennsylvania

      Susan Connor,

      I think you have a legal right to send an interrogatory to the plaintiff asking who they were retained by.

      As for what you are paying due to a default judgment, if you had a judgment decided against you, you are only obligated to the amount to which the court adjudicated.

      Brian

    • profile image

      Na Wao 2 days ago

      Dear Brian Gray,

      I requested for debt validation in line with what you stated and within 18days the law firm representing Cypress Financial provided a "fraud affidavit letter." What should be my next step? Should I sue them or how do I get them of my back? I actually used the letter you provided on the site in very specific term. Their initial letter of demand shows a different company as the original creditor and now their last letter is showing another company as the original creditor. What's the best step to hit them with in court? Your opinion will be highly appreciated.

    • profile image

      mike 3 days ago

      what can i expect to happen after i file a motion to compel since they never sen information i requested on production

    • Susan Connor profile image

      Susan Connor 3 days ago

      Help,

      Zwicker associates suing on default in 2016 but we have been paying since Marc 2018 Zwicker has claimed 2 different amounts and both are off by 10,000 I'm afraid to show them our statement because they will say We owe them the rest and will want it all at once.

      I know NCO has the account but Zwicker won't show who retained him. What should I do

    • Hanavee profile image
      Author

      Brian Gray 3 days ago from Pennsylvania

      Mr. Frecklesman,

      I think it is hubris for them to ask where you are getting your advice, and personally, I would not answer that question. It is irrelevant.

      If you read the many posts on here, you will see that we have a standard answer for questions that are being asked in order to incriminate 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."

      Study the posts and read my article. There is plenty of free material to help you. Take advantage of that material.

      Brian

    • Hanavee profile image
      Author

      Brian Gray 3 days ago from Pennsylvania

      Na Wao,

      Yes, it would appear that they have violated the law, and I would contact an attorney. The Fair Debt Collection Practices Act forbids revealing your private information to anyone other than you.

      Brian

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      Brian Gray 3 days ago from Pennsylvania

      WallaceNutting,

      Money, the chance to make lots of it for free, that is all that guides these blood suckers. When they get offered the chance to buy a $1,000 bad debt for $10, they go for it.

      Brian

    • Hanavee profile image
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      Brian Gray 3 days ago from Pennsylvania

      John,

      This link should be of some help to you:

      https://www.northwestregisteredagent.com/motion-to...

      Brian

    • profile image

      MrFrecklesman 3 days ago

      I sent the request for production (they only sent some online statements and a bill a sale from the credit card company), also part of their response is a first Request for Discovery and they have an admission request. Some of what they are asking for is:

      Where am I getting my advise from (all docs and communication)

      Same docs I requested from them.

      And they want me to admit or deny the debt in writing.

      The have not proved I owe them anything.

      Thoughts?

    • profile image

      Na Wao 3 days ago

      Brian Gray:

      A debt collector agency called my ex-wife and reported I was owing them and that they represent Ford Credit Motors. What part of the law have they violated by reporting my information to my ex-wife? When I called them, the guy said he didn't know she was my ex-wife and they went based on the information she gave them. How should I respond? I told them to write me.

    • profile image

      WallaceNutting 4 days ago

      What criteria do debt collectors use when selecting who to go after in a lawsuit (besides $ amount) ? If a borrower has multiple outstanding debts does that discourage debt collectors from filing a lawsuit? To that end, is it better to enable access to a credit report if it shows multiple outstanding debts vs. freezing your credit report leaving debtors without access to those other debt obligations? There must be a set of criteria they use before investing legal time and resources in a lawsuit. Other than $ amount, what are those key criteria they use?

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      john 4 days ago

      Where can i find an example on a motion to compel since they did not provide the requested documentation from my production request.

    • Hanavee profile image
      Author

      Brian Gray 5 days ago from Pennsylvania

      Ashley Grant,

      Sorry for the delay. I just found your email and sent a reply.

      Brian

    • profile image

      Ashley Grant 6 days ago

      Hi Brian,

      I sent you an email a few days ago, I'm not sure if you got it. I would really appreciate your input and response. Thanks.

    • Hanavee profile image
      Author

      Brian Gray 6 days ago from Pennsylvania

      K.Miller,

      You are wise to consult with an attorney. The main thing to look for is a track record of winning. You want an attorney who can say that he or she has won against these blood suckers routinely. You do not want an attorney who is willing take your money and advises you to settle with the blood suckers. It is as simple as that.

      Good luck to you,

      Brian

    • Hanavee profile image
      Author

      Brian Gray 6 days ago from Pennsylvania

      Candace,

      When you sent your request for production, if you gave them thirty days to respond, and if you sent the request via certified mail, return receipt requested, then they have thirty days in which to respond. Once they have passed that deadline, you can file a motion to compel.

      If you did not give them a deadline, then the judge would still consider that thirty days was something they should have automatically adhered to, as it is considered virtually a norm in the legal system, and you could appeal to the judge's sense of fairness and propriety in considering all things.

      Give them thirty days to answer, and if they have not by that time, file a motion with the court to compel. You may still end up in court with these blood suckers, but the fact that you filed a motion to compel will be powerful help for your case.

      Brian

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      k.miller 6 days ago

      Hello! I've got a few questions after reading your article.

      I'm in the state of Texas and I have received a citation from Midland Funding, LLC. The information included is the last two bills (from 2014) and the bill of sale of the account (from 2015).

      Additionally, I know that at some point in 2014, I went into a hardship on the account- none of this is included in the documentation they provided, and I believe I still have some of that paperwork on hand somewhere.

      You also mention not having the original signed contract- I suspect that's a matter since I don't see anything of the sort here.

      Additionally, I've seen some local law firms that assist with debt cases like this- and have been considering on reaching out to one of them for assistance, since my life is immensely busy right now, and I can't afford to not work to handle this myself. Is there anything in particular I should look for when researching an attorney to assist?

      Thanks!

    • profile image

      Candace 6 days ago

      It's been three weeks since I filed a Request for Production through the court system. How long does the debt junk collector (Calavry) have to respond? I'm getting nervous as thinking they may proceed with a court date.

    • Hanavee profile image
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      Brian Gray 8 days ago from Pennsylvania

      JScot,

      If they have filed an appeal, then you need an attorney...plain and simple. It should be easy for an attorney to knock out, because you have already won at the lower level, but, you cannot do an appeal without an attorney. The appellate level is much more complicated, and this is why the blood suckers filed an appeal. They are gambling on you not showing up, or showing up alone. By all means, speak to an attorney now without delay. This has time limits.

      Brian

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      Brian Gray 8 days ago from Pennsylvania

      Anon,

      In my opinion, they are junk debt buyers.

      Brian

    • profile image

      JScot 8 days ago

      Brian,

      This is in addition to my post below.

      The county website lists action as, Notice of Appeal to District Justice Judgment. There are 6 filings listed; automation fund, computer fund, satisfaction, attorney, state tax and T&E.

    • profile image

      JScot 8 days ago

      Brian,

      Earlier I had posted how I sent a request for performance and the bank/debt collector failed to show up for magisterial hearing. Two days later I received a Notice of Judgment/transcript from the magistrates office; It lists the following

      Disposition Summary (cc-Cross Complaint)

      Docket info and Judgment for Defendant.

      Under the comments section it says any party has the right to appeal within 30 days the entry of judgment by filing a notice of appeal with clerk of court of common plea civil div.

      Except as otherwise provided in rules civil procedure for Mag DJ, if the judgment holder elects to enter the judgment in the court of common pleas no further process may be issued my Mag DJ.

      Unless the judgment is entered in the court, anyone interested in judgment may file a request for entry of satisfaction within the Mag Dj if the judgment debtor pays in full, settles or otherwise complies with the judgment.

      Two days later I received a letter in the mail from the attorney/collector/bank, stating As you know our client has filed a complaint against you and you have been served . Please be further advised that even though this matter has been filed with the court our client is still willing to discuss resolution by way of payment plan. You are eligible provided a judgment is not entered.

      Today, I looked on the county website and notice that a notice of appeal has been filed with the clerk of courts office.

      Suggestions?

      When I had taken the request for performance to the DJ, they typed a subpoena for exactly what I requested. I sent certified and did not hear back from anyone. They did not show at the Magistrate hearing, but have now appealed. I assume I must now retain an attorney? The appeal was filed within the 30 day period.

    • profile image

      Anon 8 days ago

      Hello, does anyone have any experience with Nationwide Credit Inc? I can't understand if they are a junk buyer like the ones mentioned here or if they specifically work with credit card companies to collect the debt on behalf of the companies.

      I'm early in the process, I just got a letter saying I owe $, but plan to dispute it. Then I do not know how the process will be like, so trying to get some insight as to how to prep for the next step.

      Thank you!

    • Hanavee profile image
      Author

      Brian Gray 8 days ago from Pennsylvania

      kmh,

      Here is a quote from AAA Credit Guide:

      "Cavalry Portfolio Services LLC is a collection agency located in Oklahoma and one of the largest buyers of distressed debt in the United States. They buy collection accounts for pennies on the dollar."

      Need I say more? If you read through the posts on my site, you will find countless accounts of people going to court against these blood suckers. Cavalry most likely does not represent CitiBank, and knowing what I know, I would bet on it. They are junk debt buyers, nothing more, and you can fight them the same way others have on here using the very same tactics and principles that have been presented.

      As to what to look for from counsel, ask them how many of these cases they have won. If they tell you that they routinely settle with a smaller payout to the junk debt buyer...run. You want someone who has taken on these blood suckers and beaten them.

      Brian

      P.S. Credit card companies normally write off debt after six months.

    • profile image

      kmh 9 days ago

      My, my spouse is currently being sued by Calvary. Currently she is representing herself. We believe that the Plaintiff purchased junk debt from CitiBank. We would like to know where we can look to see if CitiBank has discharged the dept. The debt has been in default for more than two years. We are current with all Answers and Requests for Production. To date we have not received anything from the Plaintiff except their Request for Production verifying her ownership of the original debt. She has not responded to the request and the response term has not expired. We are also interested in finding legal council in the Cincinnati area who has mastered the concepts that Brian advances. Do You have a recommendation on what to look for from council. Thanks for all your advice and instruction.

    • profile image

      GVZP 9 days ago

      Brian,

      I figured that was a strategy he was using, this is why as soon as he said to me about the identity theft I immediately told him that I never claimed ID Theft, you did.

      Ok now I am more confidence about this battle, I am on the win mood, I will let you know when I get my next court date and that day will be our victory day.

      Thank you Brian,

      GVZP

    • profile image

      Another fighter 9 days ago

      Just wondering if anyone has beat Calvary? Anyone from the New England area? Seems to me, (from recent posts on here), Calvary has just sent out a large batch of, “demand for money” letters....I can see that a lot of us, (on this page/recent posts), are fighting them- blood suckers. I feel confident on my upcoming case, but just curious as to how everyone else has done? Again, couldn’t have done this alone- thx to the help of Brian and his advice

    • Hanavee profile image
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      Brian Gray 9 days ago from Pennsylvania

      Christina in Ohio,

      I am not sure that that strategy would work. However, it just goes to show that errors do occur, and it is therefore a legitimate request to have the plaintiff prove the amount that they are alleging by showing their accounting from the beginning of the account to the end.

      Brian

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      Brian Gray 9 days ago from Pennsylvania

      GVZP,

      The U.S. Post Office cannot divulge your personal information.

      The strategy that the attorney is trying to use, identity theft, is an attempt to get you to falsely claim that someone else used your card, and if they did not then you used it, therefore, you admit, through his trickery, that you own the debt. It is a trick, so don't fall for it. Tell him that you have never claimed identity theft, but you did request that he provide documentation for his allegations, none of which he supplied.

      Brian

    • profile image

      Anon 9 days ago

      Christina, funny that you should mention that, I received a similar letter for a refund in the mail while dealing with Cavalry which I ignored. Could it be that they're trying to verify information that they they're suing the right person ? I wouldn't put anything past these JDBs.

    • profile image

      christina in ohio 10 days ago

      Hi Brian,

      Thank you for getting me this far. Im doing my response for motion for summary judgement to Cavalry. I just got a letter in the mail from Citi card 2 weeks ago saying my acct would be refunded $2.47 because of an error on their end. Citi bank had sold my acct over a year ago and they are refunding me just now? Can I use this as evidence that my rate was calculated wrong and the case should be dismissed?

      thanks

      Christina *

    • profile image

      GVZP 10 days ago

      CamelJckey79,

      Thank you so much for the info, I won't give up for sure, it just annoying dealing with this people.

      I appreciated your info.

      GVZP

    • profile image

      CamelJockey79 10 days ago

      Hey GVZP, if it makes you feel better, in my case against Cavalry, they're also wasting our time. I've been to court 3 times already, and the next hearing is scheduled for March 21. I filed a request for production two months ago but never got any reply from them. Then when I went to court I told the judge that I never received their reply, and apparently they had my old address on file.

      Also, Cavalry rejected my request for production simply because Missouri law states that I must also deliver a digital copy in Word format to them also. They'll just find these dumb loopholes to waste everyone's time. Don't give up! I'm not

    • profile image

      GVZP 10 days ago

      Brian,

      I will be in court to argue my case for sure, I told him I was tired of him wasting my time but of course I will be there at the date and time they schedule. I can win this, I am very confidence.

      He made up the story of Id Theft and he was requesting proof of my address, and as I said it has nothing to do with the documentation I requested to them. Can the post office without my authorization or a court order give people personal information about me? I am curious about that.

      Do you think the idea of sending to court a letter explaining they have no ground to sue me and copy of the requested documents to them and they haven't provide with, it is good? I don't even know if they read every letter sent to court. I know they don't read every case before we are in front of the magistrate and they have to read what it's in the computer on each case, I have notice that when I am in front of the magistrate, maybe I am wrong. I just would like the magistrate to have that note already in her computer when I show up to court next time, hopefully the last time and wining.

      I don't know anything about law, I am learning a little bit with all the good info you provide here to all of us, this is why I ask.

      Thank you Brian for all your help.

      GVZP

    • Hanavee profile image
      Author

      Brian Gray 10 days ago from Pennsylvania

      JC,

      My suspicions are that this company, Johnson, Riddle and Mark is the same one discussed in these links:

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

      https://www.ripoffreport.com/reports/johnson-riddl...

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

      Treat them the same way that everyone on here has done in their respective cases, and prepare to fight them using all of the material that is on this site. My assumption is that they are blood sucker junk debt buyers, and they are most likely lying about their relationship with Capital One.

      Here is another very good link to read:

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

      Brian

    • profile image

      JC 10 days ago

      Brian I'll make this as short as possible.

      Fell behind with two Capital One credit card accounts. Life issues. Two different accounts went with two different debt collectors. One with AllianceOne and the other Northland Group. I requested debt validation. Did not receive payment from me and then the account now went with Johnson Mark LLC. Johnson Mark LLC is stating they were hired by Capital One.

      I even called Northland Group to ask who the alleged debt was sent to. Customer service guy didn't know much. Just told me that Capital One came in and grabbed that account and must have assigned the debt to someone else.

      I have tried calling Capital One and input my information into the automated system. Then it says "now transferring to Johnson Mark LLC". I don't know why this happens. Happens every time I try to call and then I hang up immediately.

      I was served twice from Johnson Mark LLC at my house. They just sent me 7 old credit card statements, generic Capital One credit agreement and a Capital One cycle facsimile report. That's it.

      I have no court date set. Just have a case number and the judge's name. I'm freaking out. I don't have the funds to do a settlement.

      I did do a free in person consultation with an attorney but he was pushing me to do a settlement. Told me Johnson Mark LLC will file to do a motion to judgment.

      Not sure what to do at this point. Any feedback would be appreciated. Thanks

    • Hanavee profile image
      Author

      Brian Gray 10 days ago from Pennsylvania

      GVZP,

      No matter how tired of all this you get, you want to wear the plaintiff down, not the other way around. Patience, lots of it, that is how you win.

      The judge gave the plaintiff another 30 days. Yes, the plaintiff is wasting everybody's time, but in thirty days, something has to give, and if the plaintiff comes up empty handed this time, game is up. Whatever you do, be in that courtroom to argue your case. Do not let that plaintiff be in that courtroom speaking to that judge without you being present.

      Brian

    • Hanavee profile image
      Author

      Brian Gray 10 days ago from Pennsylvania

      Masonstrodes,

      It is impossible to predict what they will do.

      Brian

    • profile image

      GVZP 11 days ago

      Brian,

      I went to court today, it was not as good as I expected the only good thing was that again the lawyer didn't have the documentations I requested on Nov. 21, 2017, but the magistrate gave him 30 days more to provide an address.....

      I had a little argument with him (lawyer) because he told me he will ask the judge for another 30 days because he was waiting on the USPS's answer on my address confirmation which is not relevant in this case. He said in our first meeting I told him somebody stole my identity, that's not true, he asked me my address and I told him I was not going to answer any of his questions until he show me the original contract and the right of subrogation of the alleged debt that I requested. I told him that he interpreted like that, I never say anything about id theft. The first time we meet he tries to make fill out an ID Theft Affidavit and sign it and I refused to do so. He was the one with the Identity Theft theory. I told him I was sorry for him but he ran out of time with me because I was done with him and I am tired of wasting my time with him and walked away from that room.

      When we went back to the court room, I asked the Magistrate if I could speak first and she was doubting about it and she asked him!!, So of course he started to talk the same story about the post office delay on providing him with the confirmation of my old address (again this has nothing to do with this case). She then asked me if I was agree with it and I said NO, then I told her this:

      I sent a certified letter to Middland Funding LLC on Nov. 21, 2017 requesting the original contract for this alleged debt that they are clamming that I owe which is require by law to be in their possession before they legally file a lawsuit against me according to CT State Law. They also were asked to provide their right of subrogation. On January 2nd. when we were here, he asked for 30 days because he didn't have the documentation and today he is asking another 30 days to provide now proof of address that have nothing to do with my case. I respectfully would like to ask the dismissal with prejudice of this case.

      SHE said she was going to give him the 30 days more and if the doesn't provide with the documentation then she will decide.

      Also I told her in about a month or so I have to go out of state because my father in law passed away and I have to travel with my husband to take care of some business there and probably this will be difficult to me to show up in court. She said that if I can't go I just need to call the clerk and let her know how long I will be gone and then send a letter via fax informing the situation.

      Honesty I would like to send them a fax with the whole situation in writing showing that they are wasting our times, with copies of the certify letters received by them, probably if she reads what it's going on this will end up and I don't even have to go to court again because he wont' have those documents and my address makes no different here. Plus he is a lair, I never claim identity theft. Do you think a letter explaining the case with details and that this retard is just wasting everybody's time would work or at least inform the magistrate what's the deal with him/them?

      I am very disappoint today.

      Thank you,

      GVZP

    • profile image

      Masonstrodes 11 days ago

      @ Brian Gray - they never actually took it to a court.

      "They also stated they would report this to the 3 credit bureaus as "disputed" and the credit report will not be updated if the federal reported period has expired. Does this mean I should leave it be and they will leave me alone other than reporting to credit bureaus? "

    • Hanavee profile image
      Author

      Brian Gray 11 days ago from Pennsylvania

      DTLX3,

      It sounds to me like you have done quite a bit already, and you have certainly made life more difficult for the plaintiff. When speaking to the judge, you have to believe in your defense, know your defense main points and strategy by heart, and be unafraid to speak on them. Rehearse beforehand what you are going to say, try to anticipate what the plaintiff is going to say, and have an argument to counter anything you think they might have.

      What I would tell the judge is that the plaintiff has made an allegation that they have not sustained with sufficient evidence to prove their case. I would cite the lack of proof that each of their items has demonstrated, such as attacking the validity of their witness and the lack of accounting of their 12 credit card statements. You really have to go after their proofs, or lack thereof, and then demand dismissal with prejudice citing their lack of proof. I would also cite the fact that your request for production garnered nothing sufficient to prove their case, and each request you sent them received the same thing, which shows that this is all they have, and nothing more. If that is all they have, then they did not have sufficient proofs to even file suit in the first place, and they thus lack legal standing.

      You have to convince the judge that dismissal is correct. Study well, because this is an exam that is really important to pass.

      Good luck to you,

      Brian

    • profile image

      DTLX3 11 days ago

      Brian,

      A debt collector sued me almost a year ago. I had never heard of that company so I looked them up. I found out that they buy defaulted credit card accounts.

      I found your article and filed my answer with the court. It included all of the defenses you listed. I also sent the debt validation letter to the debt collector who is named as the plaintiff.

      The debt collector sent me the last 12 credit card statements on the account, an affidavit from a person who works for the debt collector, and a bill of sale from the credit card company. Those 12 credit card statements were not a full accounting of the debt. They also did not provide a contract with my signature.

      Then I sent a request for production of documents like you suggested. They responded with the same documents that they sent in response to my request for validation of the debt.

      Since I was sued, I've been researching like crazy and read everything in your article.

      In November, I received a motion for summary judgment. Because of my research I knew I had to answer the motion. In my answer to the motion, I made sure to include that the debt collector had not proven it had the legal right of subrogation to the debt. I even included some of my state court decisions about summary judgment and proof of contracts. I also wrote that the person who signed the affidavit did not work for the original creditor and that the debt collector did not provide a full accounting of the debt.

      The summary judgment hearing is this Thursday, February 15. What do you recommend I say to the judge?

    • Hanavee profile image
      Author

      Brian Gray 11 days ago from Pennsylvania

      Masonstrodes,

      Their response was obviously weak and demonstrated lack of sufficient evidence to prove their allegations. I would file a motion to dismiss based on their lack of legal standing. You legally requested information that they needed to provide in order to show that they had a case, and they failed to do so. Simple as that.

      I would file a motion to dismiss with prejudice, and I would cite their lack of evidence and their inability to provide sufficient evidence, upon your legal request, to prove their case. In order to file a suit in the first place, the plaintiff must possess sufficient evidence to prove their case, and by not providing it when requested, they demonstrated that they do not have legal standing.

      Brian

    • Hanavee profile image
      Author

      Brian Gray 11 days ago from Pennsylvania

      GVZP,

      I would not be surprised if Midland Funding failed to show up in court. However, they might, because they could be hoping that your language barrier makes you vulnerable to their trickery. Stand your ground and demand that documents that you legally requested be presented to the court. They did not provide legally requested documentation, which shows that they do not have sufficient evidence to prove their case. I would therefore ask for dismissal with prejudice.

      Brian

    • profile image

      Masonstrodes 11 days ago

      Brian, I appreciate your article and willingness to help others. I submitted the information below to "mcm" and they responded with only a statement copy of what I've requested. There's no transactions or anything. They basically provided me with a statement one would get in the mail with no actual transactions on it. Just basically a bill. How should I proceed with this? They're asking for my lawyers information although I never actually stated if I had one. They also stated they would report this to the 3 credit bureaus as "disputed" and the credit report will not be updated if the federal reported period has expired. Does this mean I should leave it be and they will leave me alone other than reporting to credit bureaus? Thanks again Brian. I appreciate it and look forward to your response.

      *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.

    • profile image

      GVZP 12 days ago

      Hello Brian,

      Tomorrow the 13 is my 2nd. court day, I would like to file a motion to dismiss with prejudice. Do you think I could do this since they don't have any of the documentation their require to file the lawsuit against me. I told you I didn't understand what the magistrate said last month when I went to court the first time (language barrier) and the lawyer from Middland Funding asked for another 30 days to provide the documentation I requested, as we know they won't have it, they haven't send me anything yet and it have been more than 65 days. I will go tomorrow and I will ask to speak first to finish with them quick because if they don't show the magistrate the document requested by me we don't need to waste anybody's time there.

      Thank you,

      GVZP

    • profile image

      Another fighter 12 days ago

      Thank you Brian! I appreciate all of your help and advice. Will keep you posted!

    • Hanavee profile image
      Author

      Brian Gray 13 days ago from Pennsylvania

      Pam Henslee,

      It is possible that the debt was written off. Do an online search for NBC Management and see who and what they are. That should give you the answers you need. My guess is that the debt was written off and sold. Just a guess.

      Brian

    • Hanavee profile image
      Author

      Brian Gray 13 days ago from Pennsylvania

      Candace,

      Sending a few statements is not a complete validation of any debt. As you can see, a request for validation of a debt means going back to the beginning of the account and verifying each and every use of the card. They have to show a full accounting, not just a few pages of it. I would also ask them to show proof of legal right of subrogation of the debt.

      Brian

    • profile image

      Pam Henslee 13 days ago

      Brian ,

      I stopped paying on this in November of 2017. Not quite six months . But Capital One must of sent it to collections some time shortly after because the Collection Agency's letter is dated 01- 08 -2018 .

      And it "Directed me to address all future correspondence and Payments concerning this account to NBC Management Services, Inc ." They instructed me to send my payment with my file number on my check in the pre addressed envelope enclosed.

      And i also received a phone call from them yesterday .

      Was wondering if because it's not six months yet is that a big deal. It seems Capital One knew that they couldn't provide me with the proper /legal information to collect on this Debt .

      Sincerely

      Pam

    • profile image

      Candace 13 days ago

      I received a first notice from a junk debt collector so I sent them a Letter Requesting Validation of Debt. They responded by sending copies of about a years worth of statements. Is this considered proof of ownership? I'm not sure what my next step should be, I really don't want this to reach the summons stage as I'm already dealing with one there already.

    • Hanavee profile image
      Author

      Brian Gray 13 days ago from Pennsylvania

      Fighting To Win,

      That is enlightening. One would think that the magisterial level of courts would be much more relaxed. I know they are where I live. But, it pays all of us to research our local courts before launching out there. Thanks for adding that information to our free library.

      Brian

    • Hanavee profile image
      Author

      Brian Gray 13 days ago from Pennsylvania

      Another Fighter,

      Interesting, isn't it?

      Brian

    • Hanavee profile image
      Author

      Brian Gray 13 days ago from Pennsylvania

      Another Fighter,

      Judges are swayed by several things, two of which are who is the best orator, and what is their usual system. So, sometimes you have to wake the judge out of being a rubber stamp for these blood suckers who have gotten the judge into a routine of thinking that the junk debt buyer knows what he is doing and is correct in what he is doing.

      So, you have to buck the system, and be brave enough to do so. Outline a good and convincing argument. The best argument should win.

      Brian

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      Another fighter 13 days ago

      Hey fighting to win, I filed my answer and filed a validation letter on the same day. The court accepted both. When I received the “vague” validation documents from the plaintiffs attorney, (Calvary) I immediately went to the court house and dropped off a copy of request for production, and more than a month went by without me receiving anything from the attorney, so I dropped off a motion to dismiss with prejudice, to the courthouse. The court accepted it. Three days after dropping that off, I received more vague documents - (over 30 days later) the response to the request for production) these documents were simply multiple pages of objections from Calvary’s attorney. Yes, they objected over and over to producing any of the documents that I requested. Yes, they basically said they will not honor the requests for production, and even went on to say, that they have client attorney privlidge and they are not required to show their contract with the company that they purchased this debt from, or what they paid for it. I have since typed another response, again asking the judge to dismiss the case, only this time I’ve based my letter on a previous post, made on this web site, by Rodney. I plan to drop this off on Monday. I plan to fight this all the way. How can I be sued for an unproven amount of debt? They cannot produce records of what was purchased, when, where, etc. One cannot just just present a number and demand that it’s owed without a complete itemized breakdown to show how they arrived at this number.

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      Fighting to Win 2 weeks ago

      I saw a post to you from another poster (Kevin00715) who said that the debt collector's told him that discovery requests were considered a nullity when filed without leave of court.

      I had the same problem. I sent discovery to the plaintiff after I filed my answer. They sent me pretty much the same response. They included a court rule for the small claims court. I looked up the rule and, sure enough, it looks like they were right. Here's the rule.

      "Any requests for pretrial discovery must be presented to the court by written motion before being served on the other party. The discovery request shall not be served upon the other party until the judge issues a signed order approving the discovery request. The court shall permit such pretrial discovery that the judge considers reasonable and necessary for preparation for tria, and may compeltely control the scope and timing of discovery. Failure to comply with the judge's order can result in sanctions, including sanctions that may prove fatal to a party's claim."

      I don't know if small claims courts in every state have a rule like that but I do have a friend in another state who said the magistrate courts in his state have a similar rule. He said that parties in magistrate courts in his state have to ask permission from the court to send discovery requests. He also said that it's in the court rules and his state's statutes.

      But like I said, I don't know if that's the rule in every state for small claims.

      I filed a motion with the court to send discovery. I included my discovery requests with the motion. Then I sent a copy of the motion and requests to the plaintiff. Now I'm just waiting for the judge to approve it.

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      Another fighter 2 weeks ago

      I also wanted to add, that the paperwork that I received -was identical to that of Rodney’s posted previously- right down to the names in the affidavit!

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      Another Fighter 2 weeks ago

      Thank you Brian!

      Yes, I have carefully watched, read and studied all of the posts on your page. It’s been incredibly helpful. I’m sure it’s not “unheard of”, but what are the chances that a judge will side with the plaintiff? They have an INCOMPLETE, at best, statement history. One would think that they have to prove how the number that they are saying is owed by me, was calculated. Is that correct? They literally sent me statements that show only monthly balances. There is no data proving what was purchased, when, or where. Would a judge even consider their case? 15 objections? How could anyone decipher any facts from an incomplete statement history? I really wanted to post a picture of their ridiculous response to my request for production. It really goes to show that everything that you have stated here is 100% true.

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      Brian Gray 2 weeks ago from Pennsylvania

      Another Fighter,

      Sounds like you are studying well and applying what you have learned. Good luck to you.

      Brian

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      Another Fighter 2 weeks ago

      Hello,

      I review a summons and I have taken th steps that you have suggested to others. I responded to the Writ or Summons. I requested validation and a request for productio. The law firm basically sent back vague statements that did not show what was purchased, when it was purchased or whee, and they did not provide a signed contract beteeen me and their company. They also sent a 4-5 page “OBJECTION” for every document that I had requested.

      I used the letter that was posted by Rodney above and changed only a few things, and will be mailing that out tomorrow. They had next to nothing for proof. You were right Brian! I hope his is over soon.

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      Brian Gray 2 weeks ago from Pennsylvania

      Pam Henslee,

      I sincerely doubt that your plaintiff is Capitol One. If the debt is more than six months old, most likely you are being pursued by a junk debt buyer. Research the name of your plaintiff online, and you will probably get some interesting insight as to their reputation.

      Meanwhile, the letter requesting validation of the debt goes to the plaintiff, not the original creditor.

      Brian

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      Brian Gray 2 weeks ago from Pennsylvania

      John,

      You are most likely NOT being sued by Barclay, but by a junk debt buyer. Here is a good link to give you some ideas:

      https://www.westonlegal.com/debt-lawsuits/moss-law...

      Brian

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      Pam Henslee 2 weeks ago

      Brian,

      Do I send the letter of Validation to both the collection agency and Capital One Bank? Or just the collection agency ?

      I thank you so very much for your valuable advice .

      Sincerely

      Pam

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      john 2 weeks ago

      I am being sued by plaintiff BARKLEY represented by moss law firm. Can i follow the same steps as a junk debt buyer law suit?

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      Brian Gray 2 weeks ago from Pennsylvania

      Pam Henslee,

      A request for production asks for several things: a copy of the original signed contract with your signature, the terms that you agreed to with that contract, and an accounting of how the amounts alleged were calculated. They can't just say that you have a contract with the original creditor and that you owe them any amount of dollars. They have to prove their allegations, because the burden of proof always rests upon the plaintiff.

      Regardless of who was the original creditor, or who bought out the original creditor, the bottom line in your case is this: who is suing you? If the account is more than six months in arrears, that is, you have not made any payments on it for six months, chances are high that the account was written off. Depending on the amount (large amounts, they may go after within the framework of the creditor's own efforts, smaller amounts, they sell at debt auctions), it is usually in the hands of a junk debt buyer who is trying to scare you into thinking that the original creditor is coming after you. This is where it gets tricky. Junk debt buyers cannot say that they are the original creditor, but many of them, in their efforts to scare you, come very close to violating the law on this issue, with many of them actually doing so. When a junk debt buyer convinces you that they are actually hired by the original creditor and working directly with them, you can sue.

      Now is the best time to send a request for production, before you are sued. Also, you should send a request for validation of the debt, because this stops legal action until they can verify the debt. The request for production is actually a good tactic for making life difficult for the junk debt buyer.

      Brian

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      Pam Henslee 2 weeks ago

      Hello Brian,

      So when I Request for Production am I asking the collection agency to give me a copy of my agreement with the Credit card company or a copy of a agreement from them,the collection agency.

      I am dealing with Worlds Foremost Bank that sold out to Capital one bank who then turned me over to a Collection agency.

      I haven't been served a summons yet . And before I read your article I had sent the collection agency a letter requesting them to send me a copy of a contract with thier name on it and my Personal hand written signature on it . They actually sent me a copy of the contract I had with Worlds Foremost Bank . The letter I sent was not a " Request for Production "

      Capital One Bank nor the Collection Agency has any proof that I have contracts with them .

      I'm a little confused .

      Pam

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      Brian Gray 2 weeks ago from Pennsylvania

      Francine,

      Usually, lawyers who specialize in bankruptcy cases are familiar with these types of court cases. You want to search for one who has had experience in winning cases against them, NOT one who says that you should settle without a fight.

      And Midland Funding has had lots of litigation against them, so research them online. They have been mentioned on here in quite a number of posts.

      Brian

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      Francine 2 weeks ago

      What type of Lawyer would I need to contact. I'm being sued by Midland Funding and the court documentation is exactly like the one above.

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      Brian Gray 2 weeks ago from Pennsylvania

      CamelJockey79,

      Precisely.

      Brian

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      CamelJockey79 2 weeks ago

      Yeah I know... even the judge recommended that I get a lawyer so that all the proper laws and rules get followed. I wanted to tell the judge "well this is such an easy case to win and obviously Calvary is pulling loopholes now to keep me from winning it". They could have easily sent me the request for production, that is, if they actually even have it. It's just silly that they would object just because I did not send it as an attachment in Word format

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      Brian Gray 2 weeks ago from Pennsylvania

      CamelJockey,

      This is one of the reasons that I always advise trying to hire an attorney. The junk debt buyers do, and those lawyers try to thwart you with legalese and other obstacles.

      Stay the course and fight. And the fact that they had to resort to obfuscation shows that they do not have the evidence requested in the request for production. Follow the details that the court requires, and go in there armed with your request. Don't back down. I bet they cannot produce it, and your determination will win.

      Brian

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      Brian Gray 2 weeks ago from Pennsylvania

      T Stewart,

      It is too late to mail it, but you can either ask the court for a delay, or you can go into court armed with the same request that you would have mailed. If it were me, I would argue in court that the junk debt buyer needs to provide sufficient evidence to prove their case, and part of that evidence would be everything in the request for production.

      My recommendation is to study like crazy and be well prepared.

      Brian

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      Brian Gray 2 weeks ago from Pennsylvania

      J Scot,

      Congratulations on that great win! And kudos to you for your hard efforts studying and applying the materials I presented. You deserve to celebrate.

      As for your notation on the credit report, when it is a mark from the original creditor, it most likely is going to stay on there until it times out. However, if any collection company has a notation on there, you can call the credit reporting agency and request its removal. The long way around the barn is to request that any deleterious reports on there from any collection companies be removed by those very same collection companies. It is tedious, because you have to send them a written request to do so, and then monitor them.

      If the collection company sells this debt to another collection company, save your paperwork and let any entity know that comes after you in the future that they have purchased a bad debt that was dismissed by court judgment. That should stop them in their tracks.

      Brian

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      CamelJockey79 2 weeks ago

      Brian, now this case is started to frustrate me... So here's my update:

      Had first hearing on Dec. 5. Told the judge I wanted to file a request for production. He told me that is something I should have done before the hearing date but then schedule the continuance for January 6th. I wrote an email and sent a fax to Cavalry. A month goes by and I get no reply from them.

      Next hearing date was Jan 6. I told calvary's lawyer that I want to file a motion to compel since they did not send me the request for production. I filed a motion to compel, sent it to Calvary through email, fax and also certified mail. A month goes by and still no response from them.

      So now I went to court today, expecting my case to be dismissed... but apparently Calvary objected to my request for production because I hand wrote it and sent it to them via fax and wrote it out in the email. They're actual objection stated "defendant failed to provide plaintiff with a proper digital copy in word or wordperfect formatting as required by Rule 58.01(b) (3)".

      I told the judge why did I not receive their rejection letter and he asked what is my correct address. Apparently Calvary had my old address. So now I'm going to write out the request for production in Microsoft Word, email and fax it to them in addition to sending it to them via certified mail.

      The judge gave me a copy of Rule 58.01: production of documents and things entry upon the land for inspection and other purposes... apparently in the state of Missouri the law says the party issuing the request show also provide each responding party an electronic copy in a commonly used medium or as an email attachment.

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      TStewart 2 weeks ago

      This is a great article. Unfortunately I am just reading this today and I have court tomorrow. How far in advance do you have to file the request for production?

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      JScot 2 weeks ago

      Brian,

      Using the information you provided, I was able to successfully win my judgment hearing. I had filed a request for performance and sent certified to the lawyer (debt collector) representing the credit card bank, they did not show up for the hearing. THANK YOU!!

      How does this now affect my credit report? The original debt from the credit card was the only entry showing as a write off. Can this entire trade line be removed or will it continue to show for 7 years? What should I do if CC sells debt to a different collection agency in the future?

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      Brian Gray 2 weeks ago from Pennsylvania

      Pam Henslee,

      Yes, that is what I am here for.

      Brian

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      Pam Henslee 2 weeks ago

      Brian,

      Thank you for this advice. I appreciate it alot . I'll look at the contract again and if thete is a statement that I don't understand may I contact you again?

      Sincerely

      Pam

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      Brian Gray 2 weeks ago from Pennsylvania

      Pam Henslee,

      My first thought is, what are the terms in your original contract with your original creditor? If there is a clause that states that your original creditor reserves the right to transfer your account to another creditor without your consent, then the transfer was agreed to by your signature. However, in my experience, I have usually seen that these clauses add words to the effect that, if they transfer your debt to another creditor, they must first notify you in writing and give you a certain time frame in which to opt out. Thus, my advice would be to do one of two things: either locate your original contract and look for any clause that allows them to do this without your consent, or demand that the new creditor provide this proof.

      To me, it sounds like you have a case, but I would recommend talking with an attorney just to make sure.

      Brian

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      Pam Henslee 2 weeks ago

      Hello,

      My situation is I had signed a contract with Worlds Foremost Bank for a Cabelas Club card . They recently sold out to Capital One Bank . Capital One Bank sent me to a Collection Agency because I wouldn't pay them until they sent me a Copy of the contract that supported their claim thst i owed them money . So i sent the collection agency a letter requesting a copy of the contract they had supporting their claim that I owe them money .

      They sent me a copy of the contract with Worlds Foremost Bank and copies of my transaction with Worlds Foremost Bank.

      When Capital One Bank billed me they kept my same account number that I had with Worlds Foremost Bank. Same card.

      So do i owe the collection agency cuz they have a copy of my contact with worlds Foremost Bank?

      Sincerely

      Pam

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      Brian Gray 2 weeks ago from Pennsylvania

      Kevin00715,

      I would call their bluff. They are trying to scare you, because they know that you do not know the laws like their lawyers do. While there may be technicalities, the moral principle is still the same, that is, they need to prove that they own the debt ( legal right of subrogation of the debt), they need to show how they arrived at the accounting total (request for production) and magisterial or not, they can't just waltz in there and make empty allegations. Proof is proof. Make them prove their allegations.

      If they want to play that way, ask the clerk of the court for guidance in filing a motion to compel for your request of production.

      Brian

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      kevin00715 3 weeks ago

      Brian,

      I sent my request of production, and received a response saying

      "We are in receipt of your discovery request as filed. As you are aware, this complaint is filed in Magistrate court.

      Pursuant to the uniform magistrate Rule 40, such discovery request are not only disfavored by the courts but they are also considered a nullity when filed without leave of court."

      What should i make of this and do you have any advice on how i should respond. My court date is set for 2/8/2018.

      Thank you

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      Brian Gray 3 weeks ago from Pennsylvania

      Dolly1973j,

      The standard rule is to give the plaintiff 30 days to respond to a request for production, then, if no answer is forthcoming, to file a motion to dismiss, and the judge will usually rule against that and order the plaintiff to answer via a motion to compel. If the plaintiff does not answer then, the judge may issue a judgment against the plaintiff. However, most of these cases are in magisterial courts, and the rules are not quite as amicable. A plaintiff may ignore your request for production, and a judge may just shrug his shoulders. It is a real fight, and my best advice is always to seek the aid of a good attorney. If you cannot afford one, then at least try to pay for a one-hour, private consultation with one. It is money well spent.

      Read the latest material that I posted, and read it all the way through. I cannot be there to fight everyone's cases for them, much as I wish I could, so each person has to study the materials that I have posted and do their best, especially if they are going to try to represent themselves without an attorney.

      The more you study the materials that I have posted, the better your chances are at fighting a winning battle.

      Brian

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