This is a bit time sensitive, as I have another 5 days or so to respond to a legal filing.
I'm a long time forum member, but haven't been on this site in 4 years. (My credit is plain shot.) Now I could really use your thoughtful ideas.
I need some legal assistance for my next DIY legal step. (I'm not a lawyer, don't have a lot of money, and try to do a lot of things myself.) I'm not trying to completely avoid a debt, but can't afford to pay 13k (or even a settlement of 4k) right now because I'm in active home foreclosure and am trying to keep my house through loan modification. Also, I was recently laid off. Apothaker & Associates (AA) chose the absolute wrong time to file a suit against me. I'm either trying to stall until I can make a settlement of 4-5k, or just plain defer this issue for several months so I can land back on my feet and see where I am at that point. I tried free lawyer consults, but they won't touch me knowing I'm in active home foreclosure and can't afford their 2500 retainers. So I'm resorting to "Google Law". I've read and read, and created my own case filing account at the local district court.
BACKGROUND: I opened a sole-proprietorship account with AMEX in 2006, never converted to LLC, accrued 13k business expenses, business died in 2008, account charged off in 2009. (It's still well within SOL.) I think Apothaker & Associates (AA) bought the debt, but I don't know for sure if they are REPRESENTING AMEX or if they are just COLLECTING for a party that bought the debt from AMEX. (Debt may have bounced around by now.)
AA harassed me at my work number (before I was laid off.) I made the mistake of getting smart with AA on the phone one day and told them to "cease and desist". Immediately after, they filed a COMPLAINT in my local court. (NOT a summons.)
I was served the COMPLAINT by AA in October:
1. Plaintiff is AMEX FSB
2. Defendant is (me)
3. Plaintiff (AMEX FSB) issued (me) account 123
4. Defendant (me) accepted and used
5. account is in default and has unpaid balance 13k
6. all credits applied to account are in exhibit A
7. although demanded, Defendant failed to make payment of due amount
Exhibit A only contains:
• Defendant's name (me)
• Account ending in (4 digits)
• Balance due: 13k
Note: I don't think Exhibit A is sufficient validation!!!
Anyway, in November I filed a MOTION TO DISMISS, based on:
1. no relationship with AA
2. no proof of assignment (standing)
3. no verification of debt ownership
4. no verification that amount went into default
5. no verification of SOL
6. no verification of debt amount
The court ordered AA to reply, which they did in December. They filed the following:
• Plaintiff's (AA) RESPONSE to Defendant's (me) MOTION TO DISMISS
o provided facts/procedural background: that I applied for AMEX and accrued 13k debt
o legal argument:Plaintiff is original creditor and no assignment of standing is required to prove ownership of Defendants account. Defendant has not cited any statutory or case law which calls into question Plaintiffs standing to bring suit.
o Defendant did not request validation or verification, therefore Plaintiff is not required to provide any information mentioned in Defendant's motion to dismiss
• AFFIDAVIT of Service
So it looks like they are denying that they must validate (I did not send a validation letter yet, but will do so soon), and that they are in "standing" to collect on an AMEX account. They don't say for certain if they represent AMEX, or are just trying to collect themselves on a defaulted AMEX account sold to someone else.
Okay, so here's where I am at NOW. I'm planning to:
• using certified-return-receipt, mail a request to AA to validate the debt
• file a RESPONSE to Plaintiff's RESPONSE to my MOTION TO DISMISS that validation has been sent
• file an ANSWER/RESPONSE to Plaintiff's COMPLAINT, using variation of my original arguments in motion for dismissal, and most importantly questioning the validity of Exhibit A as lack of verification and validation
• file a BRIEF with some verbiage to support my ANSWER/RESPONSE
• file all necessary affidavits that all documents were mailed CRR to Plaintiff (AA)
Am I on the right track here? Should I be directing this to AA or to AMEX??? Do I need to file a counter-claim against AA to make them wonder if they want to engage in legal back-and-forth with me over the long haul?
I'm a tad confused as to the next best approach here.
Each set of responses buys me 20 days, which will get me through to tax return season; but I need to know if I'm going about this wrong. I do expect this may end up in court eventually; but there's also the chance that AA gives up after they are forced to validate documents they don't fully have. Also, I'm wondering if my hardship situation will help me -- from what I have read, it would only help a judge consider how severe a punishment to deal me, because if I owe, then I owe.
Sorry to be so long-winded. I could really use a good mind to help me sort this mess. THANKS!!!