well...went to the lawyer today & here's what's happinin...lol 1. He's filing for an extension on the summons to allow him time to file a dispute & request dismissal due to the SOL being passed & the debt claim was not validated, as was said by attchments to the summons that weren't attached. 2. He's filing a counterclaim against the CA for illegal debt collection practices based on they know the SOL is well past & cannot be sued for. so....that's the news so far...will keep ya'll informed of things as they happen. Oh....I've also had several more "snakes" come out of the woodwork since updating/correcting my CR. I'm going to start sending them the request of debt validation letters from the samples here. Will do what I can on my own, but the lawyer basically said I was on my own on them until at some later date I wanted to retain him to handle those too. Guess I'm gonna be doin a lot of typin & mailin! LOL Ya'll take care, thanks for all the help/advice & words of encouragement! They mean a LOT right now.... God Bless! @};- Rebecca
Type. Mail. And remember records are our friends. Hold on to the *copies* of any letters sent and received, including envelopes and the "green cards" from sending postal mail certified return receipt requested.
hello all.... been absent for a while but thought I'd catch ya up to what's going on with my "case" lol Went to the laywer's office yesterday and was shocked to hear what he hadn't done yet. Had gotten the extension, until June 3, to reply to the complaint but he hadn't done much since. Said that he was going to reply with the past SOL reply but that since I'd made some payments back in 2004 to the first collection agency that the SOL really wasn't past. The account, on the CR shows opened in 1997 & closed in 2001 and paid 2003(was bought by another CA). BUT...the CA that is attempting judgement(3rd CA to have it) is suing for the SAME amount that was demanded in 2004 and ever since then without the "fees" attached, which makes it even more. Point is...they're claiming the original amount owed with NO CREDIT given to the $300 I paid that first CA in 2004 after being threatened and pushed into paying it BEFORE I got "wise" about stuff like that! LOL So...here's my question to ya'll. Somewhere along the line someone said that any payments I might have made shouldn't restart the SOL timeline. Does it? MY assertion is that there's no credit/mention of any amount owed being reduced and IF "someone"(who is being PAID and requested it) asked for verification and validation of the debt with the CA that there wouldn't show anything IF they even HAVE what is required to validate/verify. I DID suggest that to the lawyer yesterday and he said he'd be "in touch". What do you think?
I think you may be confusing the SOL with the 7 year reporting limit. I don't know what the tolling statutes are in NC. Not all states are the same. In some states, a payment will reset the SOL, in others it will not, these states require a written renewed promise to pay. Still in other states it will toll the SOL for the period of time payments are being made.
LACHES, DOCTRINE OF - Based on the maxim that equity aids the vigilant and not those who procrastinate regarding their rights; Neglect to assert a right or claim that, together with lapse of time and other circumstances, prejudices an adverse party. Neglecting to do what should or could, have been done to assert a claim or right for an unreasonable and unjustified time causing disadvantage to another. Laches is similar to 'statute of limitations' except is equitable rather than statutory and is a common affirmative defense raised in civil actions. It is my understanding that "the date of last activity" would be the date they use to figure when the statute of limitation starts. Payment is an acticity, I would think.
Gib and Bykeuk...thanks for responding. The SOL in NC is 3 yrs from LDOA...that can only, I think, be proved by verification/validation of the "claimed" debt by this particular CA. THAT I believe, since I've paid him dearly, is the responsibility to ASK FOR/DEMAND by my lawyer. THAT is what I encouraged him to do now. May be too late for that but....then again. I feel we DO need to see what they have and go from there. The payments I made were made after threats against the house I had at the time and the fact they "knew I had an income tax refund coming". I told my lawyer that and I hope that he uses his knowledge to approach the CA correctly. Honestly, after finding out he hadn't done much of anything other than ask for an extension, I have lost a little "faith" in him but...ain't many "consumer" lawyers in my area and since I don't really have the time to do much traveling to get to one, will have to just pray he steps up and DOES try to "defend" me. We NEED to see what THEIR DOLA shows/is and I am hoping that he will get that info and proceed as needed from there. Let's just say..I learned the HARD WAY that trying to be a "good person" ain't exactly the right thing to do sometimes. Like I said, I didn't have the info I have now about doing/being that and trying to pay what I knew I'd used. Circumstances were beyond my control at the time I ran all that up but I've learned and it WILL NOT happen again. Credit may be a "good thing to have" but I've learned how to live without it and will do my utmost to only go there IF I absolutely HAVE TO. In the meantime, I'm paying on the mortgage I have as quickly as I can. Have done well getting it down to the point of at the level of 30 payments but have only made in actuality 11. GOD HAS BEEN GOOD! Will continue to learn and as I do passing it on to others in the "same boat". THANKS for all your help/information and CUDOS to all that make this site one HECK of a good place to learn/be. God bless all! @};- I'm gonna get some sleep now, got 2 more nights to put in....LOL ;-) Rebecca
Would the SOL have ran when you made the payment to the CA? You say the account was closed in 2001 and you made a payment in 2004, but if the SOL had already ran then it shouldn't have mattered.
sorry...I don't understand your statement. "but if the SOL had already ran then it shouldn't have mattered." :| Rebecca
You say the account was closed in 2001. You don't say when the account went delinquent. If the 3 years had run prior to making the payment you did in 2004, then the statute of limitations would have already ran. Unless they could prove you were renewing the obligation when you made the 2004 payment, they would be SOL in more ways than one. You could just claim you made the payment after it was out of stat because they were threatening you.
The payments I made were made after threats against the house I had at the time and the fact they "knew I had an income tax refund coming". The only entities that can take your income tax refund is a state or federal entity.
Let the attorney work... The problem here, and your attorney is right to point this out to you: Does payment restart the SOL in NC? Check the law here; if it does, then the SOL is still running (the payment to the first CA revived the debt). if you did revive the SOLC and the debt, then he needs to find other defenses, never mind know which counterclaims to assert! Those could very well include counterclaims under NC law as well as Federal Law. Let him work and earn his retainer; he knows the law better than you do. You need all the weapons you can get... Great Seneca is owned by Wolpoff and Abrhamson, some of the dirtiest, trickiest collection lawyers out there. (They hired the local attorneys to represent them because they are not licensed to practice in NC.) So your attorney, by asking for the extension and getting it, may very well be buying time to look for the "holes" in their case and any documentation attached to it before filing the answer. And, rightfully so: W&A engages in extensive perjury, in part by submitting false documentation to the courts. To try to "prove" their cases. They'd have nothing otherwise: JDBs rarely get documentation, and almost never get the certification by affidavit from the original creditor they need to invoke the business exception to the hearsay rule. That "no documents/no recourse" provision is part of the usual sales agreement to whomever bought the accounts first, and remains intact with each transfer. Since this one was already sent to a third-party CA (which may have been a JDB), the OC is even further removed from Great Seneca/W&A. Anyway, to answer another one of your questions: Asking for an extension of time to answer, which was done here, is common on both sides of a case, and does not reflect on his ability to represent you. In fact, he seems to be doing a pretty good job for your retainer money. Pursuing a case IS a "hurry up and wait" phenomenon. Another point: Validation does not require that a full accounting be made, just enough information be given to confirm the demand amount, or to explain why the demand amount and the amount on the validation would not match. So, since they did not account for your payments, that part of validation--verification--would fail. If they dunned and validated before they sued you. I see nothing that indicates that Great Seneca got a hold of you before they served you. I bet this demand amount was the claim for damages on the complaint itself. Just remember, once they serve you: Validation is called Discovery.
Just a thought - PrePaid Legal is a service that only costs $24.95 a month and you get to talk to an attorney and ask as many questions as you want. They could help you prepare to represent yourself Pro Se.
update on civil summons served hello all...long time since last update. Here we are one year later, give or take a month or so, and this is the scoop. Just left the lawyers office and his information to me, "This company contends that you owe this debt and you made a payment to them in 2004 so the SOL is not up. Hearing for summary judegement is May 22." I asked him if they'd sent him ANY proof that I owe the money to THEM, any agreement I signed or any type of agreement that I owed the debt? Any "validation/accounting" of the debt? Any proof from them that I MADE the payment? ANYTHING? His answer, "No." I told him that the people I made the payment to no longer are in business/exist and his reply, "that doesn't matter". So I asked him WHO I was supposed to pay since the ones that supposedly GOT payment on the account no longer was available to show that payment. I told him that the burden of proof was on THEM to prove that I owed THEM since they'd bought it and were the 4th "owners" to attempt to collect the debt. He got flustered/angry and told me to be at the courthouse May 22 at 9:30am, which is when the courthouse opens, and we'd go from there. I left him with, "My thoughts are, #1-I have never HAD any accounts or agreements with this office/company sueing, #2-the amount stated as owed is not correct and no accounting for any claimed payments made has not been done(or proved by them). #3-account was charged off 2001 by GM/HSBC-NV and shows on my credit report as "paid $0 balance" with notation "charged off as bad debt. Purchased by another lender." So HOW can I owe this company $7100? He dismissed me and said he'd see me in court. Good thing he didn't ask me for more money 'cause I'da told him to collect from the JDB he's helping sc__w me. :| Yeap, you guessed it...I'm not a happy camper! LOL Any words of advice at this point? ANY is welcome. Oh BTW, I just got refied to get cash out of my mortgage for home improvements. Scores 651, 652, 670 at time they pulled CR/took application. Kinda afraid what will happen to those scores after May 22. :-(
Does your state require a license and bond of all debt collectors? That is a strong deterrrent to many out of state collectors. Not a direct hit against the claims, but often just as effective. The local attorney, if s/he handles a lot of collections, might either be exempt or may have the license and bond if required in your state. Why are you meeting with this character in person? Do it in writing! What, specifically, did he expect to have happen when the " courthouse opens on May 22? Do you have a summons yet? Is it recorded, with a case number? Did you get a copy from him, or from the county recorder?
1. Doesnt matter if you had agreements or an account with the law firm, you did with the credit card company, and they now are legally collecting the debt, therefore, you owe them the monies now. 2. If you disputed the balance they would have had to verify the balance with the OC. If you made payments to some company that is not in business anymore, so they cant verify the balance/payments, how do you expect them to find that information? If you have information about payments made, forward them to the lawfirm, so they can investigate your claim. 3. The OC is required under FCRA to report the account with a 0 balance and sold/transferred. Take the charge-off balance, and add in all the legal fees that the law firm has incurred, interest applied, would be where you get the balance claimed. Again, if payments were made to some company, that they can not verify the balance with, then it would be beneficial to you to provide that information, all they are required to do is validate the debt with the OC. The agency that is out of business more than likely did not report back the balance/payments to the OC, so they will not have those records of payments either. The current law firm only has to provide an affadvit of sale/assignment on the account to show they legally own and can collect the debt.
If you are claiming SOL has passed, and if they allege SOL was reset by a recent payment, wouldn't you force them to prove that?
Ontrack-the payment(last one anyhow-there were 3 made postdated checks) was 4/15/04 to Rosewood,Hudson & Assoc,LLC(no longer in business). The amount on the summons I received and took to the lawyer is the same amount that Rosewood gave as the balance when I talked to them on the phone way back in 2004. It's already been 3 yrs since that payment was made and noone is accounting for it. All I can assume is, Rosewood pocketed the money and never credited the account for it. As for making them prove anything, how do I do that and why hasn't my lawyer made them do that? I don't think HE has the knowledge to get anything proved or how. Basically it doesn't feel like he's trying to help me, just help them railroad me. Maybe incorrect thinking on my part, but from what he's shown/told me, that is the picture I see happening. I do feel he's inadequate in MY defense. SOL is up now, even with the payment made. Collectman-honestly I don't think anyone has verified ANYTHING with the OC. OC has been out of the picture for almost 6 yrs now. Default was in 2001 when it was closed/sold. Unfortunately, I hadn't found creditnet in 2004. It was after that I went looking at how to protect myself against these JDBs. All the information on this forum and a few others I've been on, appear to be MORE information than the lawyer I've paid to represent me even has or knows. No validation has been made that I have seen and even the lawyer bypassed responding to my question to him about getting any from anyone. All he could/would say was, "They contend you owe them this amount." Like I said, I had statements in the file HE has showing the balances owed as about $2000 less than what they're trying to collect. Yes, I know the interest , late fees, crap charges of the various JDBs that have had this account SINCE the OC is in that figure, but where is that payment I made being taken into account since, as I said, it's the SAME amount in my notes of the conversation with the 2nd JDB(Rosewood) that was allegedly owed in 2004? Basically it looks like THEY sold it to this new firm without anything being credited. Such as the practices of JDBs, right? And tomorrow is another day.......sigh.
Actually the SOL was not expired at the time the lawsuit was filed. They have 3 years from the DOLP, according to you 4-15-04. According to your post you were served 4-3-07, and the lawsuit had to have been filed at the end of March, meaning they were in time for the suit and it is not time barred.
If you ever dispute the account in writing pursuant to the FDCPA, they would have to verify the debt with the OC, or they would be in violation. Were the payments you made to settle the account or just payments off the total balance. In 3 years that could be a few thousand dollars in interest. Maybe the new law firm is not charging interest, or as much. Maybe they have lowered it down to "legal", meaning the account is in a legal status pending court, interest in NC which is 8%.
Well I haven't disputed anything recently with them. THAT is what I ASKED the lawyer to do when I paid him, but evidently he has not. He's got all the paperwork I had on the stuff/account so I don't know even how to start doing anything in that direction, if I still can. NOT HAPPY with the representation of the lawyer and not sure what I can/cannot do. The payments I made were off the total balance. I didn't have and still don't have the money to settle the account. THAT they want in one lump sum and I don't have $3-4000.
