Help! Complaint received by Apothaker & Associates
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  1. #1
    Join Date
    Apr 2003

    Help! Complaint received by Apothaker & Associates

    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
    1. denied
    2. denied
    3. admitted
    4. denied
    5. admitted
    6. admitted
    ? BRIEF
    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!!!


  2. #2
    Join Date
    Apr 2003

    Re: Help! Complaint received by Apothaker & Associates

    By the way, I'm in PA. (AA letters are coming from NJ.)

    Oh, and Merry Christmas to everyone!

  3. #3
    Join Date
    Jan 2008
    Seattle, WA

    Re: Help! Complaint received by Apothaker & Associates

    Welcome back to the forum EC.

    I'm not a lawyer, but it sounds to me like AA is just representing Amex here. They haven't purchased the debt, which is why Amex is listed as the Plaintiff. It would be a good idea to verify that this is the case sooner rather than later.

    Overall, your plan sounds pretty good to me, but remember that the FDCPA doesn't govern the collection tactics of the OC. So, Amex isn't required to validate your debt. Direct your communication to AA, not Amex, and request validation from them as they are governed by the FDCPA even if they've just been retained by Amex to help collect.

  4. #4
    Join Date
    Apr 2003

    Re: Help! Complaint received by Apothaker & Associates

    Joshua: Thanks for your response! I sent a validation request to AA. Although I'm not within 30 days, I believe they still have to validate upon request.

    I think you're right. AA was retained by AMEX, which makes this uglier. It was my hope that AA had bought the debt. However, it seems that I may have to settle with AA on AMEX's behalf if I want this to go away. (Will have to wait for tax refund and try to settle for 50 cents on the dollar.)

    As for legal proceedings, I would like to know if I can file a REPLY (#3) to AA's REPLY (#2) to my MOTION TO DISMISS (#1) to their COMPLAINT (#0). I'd like to inform the court that I have requested validation, in response to AA's REPLY (#2) that I did not request validation. Good idea? Can I REPLY to a REPLY more than once? Or after the first REPLY, do I have to move immediately to ANSWER without a chance to REPLY to their REPLY? (Lawyers and anyone versed in the flow of civil suits are welcome to please respond!)

    Ultimately, I have to ANSWER the COMPLAINT. Between the holidays and my stalling via my motion to dismiss, my clock is running down to zero again. My answer will include several points to dispute the complaint's claims, just to buy me more time. Essentially, I will "DENY" or "INSUFFICIENT INFO" or "ADMIT" where it makes sense.

    Other than "retain legal counsel" as a response, any additional insight? Again, I'm trying to buy time (to come up with 4-5k), and I'm trying to discourage AA/AMEX from moving sooner towards an actual court date by flooding them with cost- and time-consuming work (validation) before the case can come to a trial. At the same time, I'm not trying to piss off the court.

  5. #5
    Join Date
    Aug 2008
    Northeastern United States

    Re: Help! Complaint received by Apothaker & Associates

    Quote Originally Posted by EC View Post
    Joshua: Thanks for your response! I sent a validation request to AA. Although I'm not within 30 days, I believe they still have to validate upon request.
    Unfortunately, no.

    If AA is only representing AmEx -- and is not the actua