Question on Summons -- Discover Card
I received a District Court Summons from a Law Firm/Debt Collector in regards to my delingent Discover Card account ($3200now/original $1200). This firm has never contacted me regarding payment on this collection. The Summons was the first I had heard from them. I have the Answer to my summons all prepared and would like to know if I need to state the fact that this is my first contact with the Law Firm or does that matter now?
My last payment was in 2005 so it's not out of the SOL.
Any info is greatly appreciated.
Side issue, but possibly relevant:
Does you state require a collection agency to be licensed and bonded? Many states do, and if they are violating state laws that would be relevant in an answer to a summons for debt collection. Some states require a $10,000 bond and a license.
You can look up this information for your state here on Why Chat's site:
Section 803(2) of the FDCPA, 15 U.S.C. § 1692a(2), defines the term "communication" as "the conveying of information regarding a debt directly or indirectly to any person through any medium." In its Staff Commentary, Commission staff stated that the term "communication" "does not include formal legal action (e.g., filing of a lawsuit or other petition/pleadings with a court; service of a complaint or other legal papers in connection with a lawsuit, or activities directly related to such service)."
If it's yours pay it before it's a judgment.
Do not take the advice of the collection agency in post # 3 above. It must be proven to be accurate, it must be proven to be yours, and it must be proven the agency trying to collect is legally able to collect in your state, it must be proven the account is accurately reported....
Do not just bow down to the collection agency. They probably paid a few pennies for your debt, and they want to collect $3200?
While post #3 is definitely dead wrong, so is the idea that violation of any law by the plaintiff will provide you with a viable defense.
I grant you that if the plaintiff is a 3rd party debt collector who has failed to comply with state license laws your mentioning that fact to the judge verbally might get you a continuance until such time as the plaintiff can prove to the court that they are in compliance.
I've even heard stories claiming that the judge would only give them 30 days to comply before dismissing the case. But the chances that any violation of law by the plaintiff will help your case are slim indeed and your reliance upon them will only help lead the court to believe that you have no defense.
You say you have your answers prepared. Exactly what are your answers?
I do hope that you understand that simply answering the plaintiff's complaint is not going to be sufficient unless you also have prepared some good affirmative defenses in a separate document.
Are you also prepared to send interrogatories, admissions and demand for production of documents to the plaintiff at the same time you file your answer and affirmative defenses with the court?
Have you prepared any motions to dismiss which you also intend to file at the same time you file your answers?
What about the possibility of filing a federal case against the plaintiff for violations of FDCPA, FCRA or SEC violations? Have you any grounds for filing such action(s)? Although it does work in rare instances, filing counter suits in your local court will usually get you nowhere. Local courts seldom pay any attention to such counter suits.
Does the plaintiff have any valid proof (accounting) of his claim? If so, what does that proof consist of?
Does the plaintiff have any affidavits before the court? If so does the Plaintiff plan to simply rely on his affidavit or does he plan to have the affiant in court to testify? If he has filed an affidavit with the court have you examined it carefully for any possible errors or obvious falsehoods?
Do you plan to challenge any affidavits or evidence presented to the court? If so what will those challenges be? Simple denials of the plaintiff's complaints or allegations will not be sufficient to win.
Has the plaintiff violated any rules of procedure or evidence? If so, which ones and how did he violate them?
Rules of evidence and procedure are your best friends in court. Learn them and use them effectively and you might stand a chance.
Does the complaint include all indispensable parties? In short, is the plaintiff the party of true first interest in the case? If not you might consider filing motion to dismiss for failure to include all indispensable parties.
I just copied what the FTC staff attorney opinon is as an example, are you telling them they are wrong?
Federal circuit courts that have addressed this issue recently have arrived at the same conclusion. In a 1997 opinion, the Seventh Circuit stated that "[t]he debt collector is perfectly free to sue within the thirty days; he just must cease his efforts at collection during the interval between being asked for verification of the debt and mailing the verification to the debtor." Bartlett v. Heibl, 128 F.3d 497, 501 (7th Cir. 1997) (Posner, J.). In the most recent federal appellate court pronouncement on the subject, the Sixth Circuit stated, "A debt collector does not have to stop its collection efforts [during the thirty-day period] to comply with the Act. Instead, it must ensure that its efforts do not threaten a consumer's right to dispute the validity of his debt." Smith v. Computer Credit, Inc., 167 F.3d 1052, 1054 (6th Cir. 1999).
If an attorney debt collector has had no prior communications with a consumer before serving a summons or other court document on the consumer, that document would constitute the "initial communication" with the consumer if it conveys information regarding a debt. The attorney would therefore have to include the written notice mandated by Section 809(a) (often referred to as the "validation notice") in the court document itself or send it to the consumer "within five days after the initial communication."
Yes, but you told the poster that it doesn't matter whether it is a first or second
Originally Posted by collectman
communication. That is what is wrong with your answer. It does matter but not as a part of his answer to the complaint.
If it is a first communication then he has 30 days within which to dispute the debt or any portion thereof. If he does that by certified letter return receipt requested within the first 30 days after receipt of the initial communication by the third party debt collector who is now the attorney filing the lawsuit and the attorney does not suspend all collection activity including any further court action until he has fully and completely complied with the demand then the defendant has a further cause of action in federal court against the attorney as well as the plaintiff.
If he sues the both of them for violation of FDCPA then the attorney can no longer represent his client but each must hire their own attorney to defend the federal action.
So now tell us that it don't matter whether or not it is a first or second contact.
Tell the poster that he should just pay up and thereby waive his right (for all practical purposes) to dispute the debt or any portion which he cannot do. Remember that under FDCPA the right to dispute the debt or any portion thereof cannot be denied or waived.
Tell the poster that paying up is the only right he has?
Now do you see why we claim that your advice is wrong?
I think that it is not only is it wrong, I think that it is evil.
Not often will you find a CA that will file suit before a validation notice has gone out, just because he claims they didnt contact him doesnt mean the law firm cant produce a statement or note in his account showing a first notice went out, and no we cant backdate notes in our computers or edit the notes already saved.
Well, you miss the point yet once again.
Originally Posted by collectman
Once the attorney takes over he also steps into the role of a third party debt collector. He has the same exact requirements to follow under FDCPA as the putative plaintiff (if also a 3rd party debt collector).
Therefore what the collection agency may have sent out matters not once a lawsuit has been filed.
The question then becomes has the attorney also sent a demand letter prior to filing suit? If not then the complaint and summons are his first communication with the debtor and the proper notifications must accompany or be sent within 5 days.
In the event that the attorney violates FDCPA in some way and the debtor sues him in federal court naming the collection agency as a co-defendant then what I have said above in my last post applies.
If the lawsuit is the attorney's first communication with the defendant then a simple statement that the communication is from a debt collector and any information obtained will be used for that purpose is not sufficient.
The thing that we don't know at this point is what required notices if any were included in the complaint or whether or not a separate letter was sent by the attorney containing the proper wording.
We also do not know whether or not a hearing date has been set and whether or not that date is beyond the required 30 day period within which he has the right to dispute the debt or any portion thereof.
I believe that debtors should never pass up a chance to become a plaintiff in federal court for the simple reason that it is far better to be a plaintiff in federal court than it is to be a defendant in any court.