Hello, I've received a summons 2 weeks ago from a law firm representing CACH in Colorado (Melissa A Ferris, Orlando) esquire. In doing the follow up research I've checked the cleark of county court website and there is indeed a suit. Also I called the CC company and they gave me the date they sold off the debt to CACH. The summons is the first communication I've had from these people. In the complaint, no where does it list having a 30 day vailidation period. Is this in itself a violation of the FDCPA?? I would like to compose a validation letter. Mainly because paragraph 8 is the statement "8. The Plaintiff purchased the account from the orginal creditor, Bank One, for good and valuable consideration. A copy of the Affidavit of Indebtedness and Certificat of Assignment is attached hereto and incorporated by reference." So attached to the complaint is a notorized affidavit that says mainly: "1. I am the Authorized Agent for the Plaintiff and I am familiar with the books and accounts for the Plaintiff. I have personal knowledge based on the information as to provided to us by the orgininal creditor and accordgin to the books and records of CACH, LLC." Mainly the other items in the complaint accurate as in I did have the credit card and agreed to orginal terms and yadda yadda. They attached also what looks like the last credit card statement and the orginal T&C's (with the aribtration clause highlighted, I might add. I should also add in great state of Florida I still have a year left until the SOL expires. Sooooo, this brings me to my main questions.. 1. Can I go to the courthouse and file as a response, a validation letter? As the summons specifically does not include any reference to the validation period. 2. My MAIN concern is if I compose and file a validtion letter, that it won't slow the legal process. That if the 20 days expire then I'll still get a judgement. Do I need to be asking for a continuance, or stay, or delay for discovery or something? 3. Also I'm afraid to comment to the paragraphs on the complaint as they are by and large accurate, and I don't want to screw up the legalese. 4. The online docket currently doesn't list a court date, so I'm watching this but I don't know what additonal activity will show there before they issue a judgement against me. 5. Or what else could I file to slow this? Should I tell them I want arbitration per the T&C's they included in the complaint? They have offered a rather high settlement, about 90% of the listed debt. If they would make it something sensible like 25% then I would pay it. But I get the feeling from all I'm reading, these guys either want to scare you into a high settlement or just get the judgement. So I sort of get the feeling if I show any kind of sensible backbone it will help. And the kickier, I only have about 4 days to make a response!! Please, anyone, any advice!! Help! This forum is a wealth of info, kudo's to all involved. Mike in the Sunshine State..
No, STOP thinking DV letter. That time has past. YOU NEED TO FILE AN ANSWER TO THE SUIT. During the discovery phase you can have the court order the Plaintiff to produce a whole lot more documentation than any DV letter would require, however if you do not file an answer the Plaintiff will move for default judgement and win. A DV letter will not stop the legal process. Discover will take a while as well, therefore buying you the time you desire. Start researching how to file your answer or contact the court clerk, they may have a simple 'general denial' type form you can use.
Also, in your answer only admit the things that are absoloutly and completly true. Only deny the things that are absolutly and positivly false. As for everything else, all that stuff like between your name and signed by, try a simple 'I don't know statement'. I used this one and so far it has worked; Defendant is without sufficient knowledge to form an opinion as to the truth or accuracy of the allegations in paragragph XXX of the complaint and based on that denies generally and specificaly each allegation therein I just repeated that for each paragraph. Remember, I'm no lawyer.
Thanks woops for the advice. I'm in agreement that it is late for a DV letter, but I think I'll send them one anyway after the reply to the complaint. Just in case it might help budge them toward a reasonable settlement, and also since the summons was the first contact from them. I'm generally leaning toward a blanket denial or your 'I don't know statement' from your second post. Here is an a simple list of the complaint paragraphs: 1. This is an action for damages that does not exceed 15k exclusive of interest, court costs, and attorney's fees. 2. The Plaintiff is a an LLC with prinicipal address blah blah CACH Colorado. 3. The defendant is a resident of Miami, Dade county FL. 4. The D entered into an agreement with Bank1 to obtain a credit card acct. number X..X. 5. Commencing on x/x/95, the D accepted the CC services rendered by B1, and there4 reveived the use, enjoyment and benefits of service. 6. The D breached the agreement by defaulting on the montly payments due on the Bank1 account and it was closed for failure to pay on or about 12/31/4 7. The D expressly agreed that the if the account went into default the remaining unpaid balance would be immed. paid. 8. The P purchased the account from the original creditor, B1, for good and valuable consideration. A copy of the Affidavit of Indebtedness and Certificate of Assignment is attached hereto and incorporated by reference. 9. The D's account has a remaining balance of $X exclusive of interest, court costs, and attys fees. 10. The D agreed to pay the P's cost of collection, including reasonable atty's fee in this matter would be a min of $600 and will seek an award in that amount in the event that a default judgement is entered against the D. In the event the matter is contested, the P intends seek additional atty's fees based on the hours spent, services rendered and other reasonable factors. 11. The P has complied with all conditions precedent to the filing of this complaint. 12. This is an attempt to collect a debt, all info used for that purpose. That's the whole thing, I think I'll jot down the affidavit in another post. The main thing is quite a few of their points are accurate. Points 3-7 sound generally accurate. I could use the 'I don't know' statement for the others? Or all of them? Thoughts? mike
When you respond to the complaint it is under oath so be careful and honest how you respond. From your post you are aware of the debt, and are not disputing the amount of the debt, as you are trying for a settlement. Why not call the law office and ask them today about a settlement before court.
Here is the attached affidavit, as far as I can tell this is the only evidence connecting the collections atty and the original creditor. CACH Pltf vs me D't. Affidavit of indebtedness and certificate of assignment State of Colarado Before me, the undersigned authority, this day personally appeared, xx, who after being duly sworn, according to the law, deposes and says: 1. I am the authorized agent for the Plaintiff and I am familiar with the books and accounts for the Plaintiff. I have personal knowledge based on the information as provided to us by the orginal creditor and according to the books and records of CACH, LLC. 2. The Defendant, me, currently owes the prinicipal amount of $xxk for monies due to B1 credit card account number XXX. 3. The B1 credit card account was charged off on or about 12/31/2004 and was sold to CACH, LLC for good and valuable consideration. 4. The account was sold with a past due balance of $xxk to the Plaintiff CACH, LLC.. And all of this is signed and notorized in Colorado. So mainly this whole thing hinges on point 1 above, that someone has signed and notorized that they have personal knowledge of a debt sold from the CC to CACH.. It's amazing this stuff happens every day. Any thoughts?
Bank One sold the account to the CA, the CA got tired of waiting for you to pay so they hired the law firm that is taking you to court. The CA will usually have a notorized statement from the OC to CA showing they own the account has proof they have a legal right to the monies owed.
Collectman, you are correct I am aware of the debt and it is real. I have been in contact with them but the problem is they are demanding about 90% value of the complaint as settlement! Which is 2 or 3 times what I can afford! Everywhere I read it indicates they buy these things for .02-.03 cents on the dollar. Regardless I will be calling them again b4 the 20 day limit, and filing something.. The amazing thing is that I'm a head of household, and in Fl can not be garnished. You would think they would want to settle, but they have not budged from the high number. I rather think they are just trying to get the judgement first, and we have to get past this stage. But I'm not sure!
Doesn't matter how much they pay they are entitled to the full amount. Once a judgment is obtained they will seek to attach assets. All those costs will be added back on to the judgment. It would be a wise idea to look for a loan somewhere to resolve this before court, it's only going to get more expensive.
Your best result might be to reach a settlement, however, first check the basics: Based on your own records or recollection (not the CA's allegation), what is the date of your last payment? What is FL SOL for CC debt? Is the alleged amount of the debt accurate, or do you know? "1. I am the authorized agent for the Plaintiff and I am familiar with the books and accounts for the Plaintiff. I have personal knowledge based on the information as provided to us by the orginal creditor and according to the books and records of CACH, LLC." Be aware that this affidavit says nothing about whether the amount of the alleged debt matches the OC's records. The Plaintiff is NOT the OC, the Plaintiff's records alone do not prove what debt was owed to the OC, nor can Plaintiff's attorney swear that they accurately reflect the OC's records, of which he has no personal knowledge, which is probably why he did not do so.
Florida where the statute of limitations on credit card debt (open ended credit) is 4 years. You do not make any payments to your credit card company for two years leaving only 2 years to go before the statutory period is up. Suddenly, you decide to move to Georgia, stay 12 months and then move back to Florida. Florida statutes say that leaving the state or making a voluntary payment tolls (stops) the running of the statutory period. So, on the day you move back to Florida, the remaining 2 year statutory period begins running again. On the other hand, if you had two years left on the statutory period and suddenly decided to make payments for 12 months but then stopped again, the 4-year statutory period begins running again. In effect you've reset the clock. In some cases, making an actual payment or making a verbal or written promise to pay can reset or restart the limitations depending on your state code.
Just my $.02, but it's all part of the bargaining process. If they can get you to fold in the first hand. They win. If you don't respond, they get a summary judgement. They win. If you ignore it, it won't go away. They win, big time. You MUST respond. It was said above, but from the cases I've reviewed (in a very cursory study) the process seems to go like this: Answer the summons and deny everything (except your name and address as Woops describes). File a motion for discovery so you can see the evidence that they plan to use and find out what the heck they are talking about. Ask for everything (there are some good examples of this floating around) that might be remotely associated with the case against you. This isn't just to make them work and run up billable hours (although that's a potentially constructive side effect), but to find out what they plan to use against you. Hopefully, this process will bring the two of you to a negotiating table where you can settle for less (that's why they start out high and you start out low). It could end up in court, but from what I've seen most (80%?) don't.
also... see my thread here: http://consumers.creditnet.com/Discussions/credit-talk/t-the-script-65674.html I included a list of affirmative defenses that you can use (with some modification). There are about 10 or 12. If they want to play hardball, you need to put on a good catcher's uniform.
Denying everything even though he knows the debt is aware of it, and has been contact before regarding the debt from the OC, and a CA or two? Exactly how would you phrase you have no knowledge of the debt, under oath, when in fact you are aware of it? All of those billable hours can be added back on to the debt as reasonable attorney's fees.
I wouldn't say to purjure yourself But, until you have all the documents, how can you be sure of what they are saying applies to you or is accurate? Maybe it does, maybe it doesn't, but until you have the documents in your hands to examine, you can't be sure. Woops' post above has the boilerplate: Defendant is without sufficient knowledge to form an opinion as to the truth or accuracy of the allegations in paragragph XXX of the complaint and based on that denies generally and specificaly each allegation therein. Collectman is correct, if it comes down to being found liable for collection costs, the attorney's fees could come back to you. In reviewing a handful of Answers to Complaints in suits that were brought against credit reporting agencies and collection agencies, they ALL respond with that sort of language. Basically saying that they are denying it until proven otherwise.
It is entirely appropriate to expect Plaintiffs to prove their case. Knowing that at one time there may have been an account is not the same as agreeing that a particular debt collector is owed what they claim.
Thanks for the comments, all helpful and good perspective. Generally I'm leaning toward responding with 'Defandant is without sufficient knowledge' statement to all of the points, except perhaps for point 3 that states I live in Miami, Dade county. At least then I hope to get the next stage of negotiation. The CA did attach one of the old (last?) statement from the OC Bank1. I have been in contact with CA's before, but they all were engaged by B1 before the charge off. In fact this summons is the very first communication from the CA representing CACH, the firm who purchased the charged off debt, or the first communication from CACH in general. Mike
Hi ccbob, very good stuff in your other thread. Do you use the statements of defense in your FIRST answer to complaint?? thnks
Mike34, Just to let you know I was being sued by an OC. I answered the complaint. Discovery began. During this process I learned the name of the attorney at the law firm that was personally handling my case. All the while I continued to answer their interrorgatories and sent my own, I additionally sent that attorney a settlement offer. Today I received a telephone call from him, he was very agreeable to my settlement terms. I think it was win/win for all involved. I will admit that the amount we agreed to was in the neighborhood of 70% and it included a payment plan. If I didn't take the advice found on this board and file that first answer, I'd be saddled with a judgement and garnishment right now. BTW, I will post a thank you to the entire board in a new thread once the settlement paperwork is actually signed.
Be careful... The defenses I quoted in the other thread were from an suit against Equifax so they may not all apply. On the other hand, reading them, it's a bit of a challenge to see how they would apply to Equifax. Not being a lawyer, they, like the 90% settlement offer, seem more like negotiating strategy: The more you throw at the other side, the more they have to catch. BUT, I would imagine if you throw something back that doesn't make sense or wouldn't apply to your case, you might lose some credibility (best case) or lose the case (worst case). Just be sure you do your research.
