Hi everyone, I have been reading the posts over the past few weeks and find some very good information, but now I really need some help! OK, so here it goes. Let me start by saying that my husband and I have a lot of bad debt that we are trying to get cleared up. We actually went to see a credit attorney last week, but had to reschedule for later this week. Our debt began in 2002, and we decided to take control of it by using a credit counseling service, which started out fine, but then they began paying late and then stopped paying altogether... So after that we decided that maybe it would be best to file for bankruptcy and we filled out all of the paperwork and had so many people telling us not to go through with it. OK, so that is where everything just went downhill because we did not have the money to pay off our debt we just stopped paying, which brings us to today. The day after we went to see the lawyer my husband received an advertisement from an attorney's office and inside it said "You are being sued by a debt collector, (Asset Acceptance) FIGHT BACK and you may save thousands." There is more, but no point in typing the entire letter. The letter has a a case number and when I go to the clerk of courts website I find that Asset Acceptance has set an SP Pretrial New Date for February 7, 2008. My problem is that we never received a summons or subpeona to appear and would have never known about if that advertisement letter would have never arrived. I wanted to know if you all could give me some advice as to what I should do and if you have ever had this happen to you and how it turned out. I really would appreciate any help you can offer. I am getting very nervous and am thinking that I might be next. Thank you,
Call the attorney that sent you the targeted solicitation. Many consumer attorney's operate on counter-claims alone and do it on a contingency basis. It sounds as though they are pretty astute at handling Asset. This may save you from facing a judgment. For everything else, you should be able to dispute some things off since some time has past since the initial date of delinquency.
Apex, Thank you so much for your advice. I was hesitant about calling because the solicitation did not look right, but I am glad that I did call the attorney's office. After finding information about the attorney online, I had some questions for him before giving him any information regarding the case. I was advised by the attorney directly that he used to work for the enemy (i.e. creditors rights attorney's office), but now works for the consumer after gaining the knowledge from the enemy. The attorney did let me know that we should not appear at the pre-trial unless we actually receive a notice to appear or receive a subpoena, in which case he would be more than happy to represent us. I was worried about not appearing, but he said that it is the responsibility of the person trying to sue you to find you, and if the attorney's advertisement was able to find us than the collector should be able to find us with no problem and if they don't that is their problem. He told me to keep in mind that this is a civil case and not criminal, so there is no way that a bench warrant can be issued for not appearing. I must say that a lot of the anxiety that I was feeling is gone, but I do know that I can't let my guard down because there is more to come. I will definitely be back because I am working on getting both of our credit back on track, so that we can get ourselves and our two beautiful daughters into a house of our own. Thank you so much for your help!
Well, hold on just a minute before you leave. You didn't receive a Summons from Asset I realize but, you now know that you were sued. Seems only logical to file a response. However, I guess you could let it go to default and then take action since you were never served. However, you would have to move to vacate and then if successful, file your own action for FDCPA violations. That seems like a lot of work when you could just make appearance via an Answer with counters. However, maybe he (the attorney) knows something I don't but, I am confused by what he told you. In short, if you do not appear (and I don't mean physically, I mean file a responsive pleading) then default judgment can be awarded against you. To me, that is making a mountain out of a molehill.
OK, after reading what apex wrote I decided to call the attorney again. The attorney told me that the advice he gave me yesterday is just advice. I as the consumer do have the right to go to the courthouse to request the paperwork that was filed by the collection agency. He also advised me that on the clerk of courts website it does not show that they are trying to issue a subpoena, so that could be a defense on our part. The attorney believes they might be trying to get over on us. After a long conversation by phone (which they are not required to do) I have made an appt for tomorrow to have a consultation in person. I will follow-up tomorrow to let you know how it went. Apex - Thank you again for your advice. Without this forum I think I might be in more trouble than I am.
Yes, please do follow up because I for one am completely lost. My suspicion is that something is being lost in translation. For what it's worth, your welcome but, some things need to be cleared up. Report back.
I am back to report on how it went at the attorney's office. I first have to say that I was a little disappointed that the attorney was called away on a case before I got there, but his legal assistant was helpful. I had to go to the courthouse to get a copy of the complaint filed against my husband. I took that back to the attorney's office where the legal assistant reviewed the file and found that my husband is being sued on two accounts that Asset Acceptance bought (Target and Household Bank) together totaling almost $8,500 with interest. The interesting thing is that there were two statements attached, which both show that the last payment received was in April of 2003. I asked the legal assistant whether we could fight back with SOL because I live in Florida and the SOL is 4 yrs. He told me (which I hope someone in the group can confirm) that SOL is based on the state that the creditor is in and not where the debtor lives. I was a little confused about the SOL, but continued to get information. Well, to make a long story short he told me that if we choose to go with their services that they will charge an initial fee of $1000 (fee for representation) and if debt is avoided in its entirety there is an additional fee of $1000. If the CA does not go for clearing the debt in its entirety than the attorney will go back and forth and negotiate a lower amount until we are happy. The attorney has gone up against Asset Acceptance before and his legal assistant believes we have a good shot at getting out of this free and clear. The legal assistant said that they are at an 89% when it comes to clearing up credit with a zero balance and no money out of pocket to the CA. Now, my question for you all is SOL based on the state that I am in or the CA? Also after everything that you have read do you think we would benefit from using this attorney or should we shop around a bit more? We don't have a lot of time left as our court date is set for Feb 7, 2008. Thanks for listening to my long spiel...
I was under the understanding that in a credit card, the SOL is that of where you live. If that means it's out of statute in your state, I'd apply the defense and let them prove the contrary (e.g. if there's something in the agreement that says "this agreement is governed by the laws of the state of (whatever)." Even then, your state may have a statute that overrules that.
Normally the state where you live. Where the CA is doesn't matter. However, as ccbob pointed out, some credit agreements have a choice of law provision, where they say that the agreement is governed by the laws of a certain state. In that case, the specified state should be the SOL used. You need to show up for the court case and claim that this debt is past the SOL. It will be up to them to prove otherwise.
If you live in FL, the SOL is based upon FL law. That is the SOL is either 4 or 5 years, depending on the way the judge swings. Now, according to FL law, if the contract/agreement has a Choice of Law provision and that provision names a state that has a shorter SOL than FL, then you can use that state for the purposes of SOL. The legal assistant was wrong. See PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES 13 Fla. L. Weekly Supp. 560a 2006 and 1. Mazzoni Farms, Inc. v. E. I. DuPont & Company, 761 So.2d 306 (Fla, 2000)[it is incumbent upon the parties seeking to avoid enforcement of choice law provisions required that the foreign law contravenes public policy of the forum jurisdiction]. See Chapter 95 of the FL statutes.
I want to say thank you so much for your responses. I am so glad that I have this forum to refer to because without it I would not have even known to ask about the SOL. I think the best thing for me to do at this time is have a discussion with the attorney tomorrow before we make the decision to go forward with them as our representation. I want to be sure that he has his head on straight and is in it for our best interest. I have called the Florida Bar to verify that he is a lawyer (which he is) here in the State of Florida and that he does not have any complaints (which he does not). Now, I have one last question this late night... I hope this is not a stupid question!!! Does the SOL end when the CA files (I hope I phrased this correctly) or the day that you appear in court? I ask because the CA filed suit December 21, 2007 and our court date is February 7, 2008.
Suggestions... Should my husband and I show up to court or let the attorney handle everything? I know that this is my decision, but I prefer to hear some suggestions. Thank you,
Thats only something you can decide. I think we all have some concerns about the info given you by the lawyer and legal assistant so far. Of course, some things may be getting lost in the translation. I'm not in Florida, we just hear from a lot of people there, and SOL is somewhat of an oddity in that state. (Enigma has hinted at that fact in his post). Enigma also mentions the shorter Choice of Law Provision, and I'm wandering if that is what your attorney is referring to when he told you that SOL is based on the state the creditor is in - its not, unless their SOL is shorter than FL's.
I do appreciate the concerns and am grateful to all of you. I am awaiting a phone call from the attorney because I have asked him to clarify the information given to me regarding SOL. I spoke with the legal assistant this morning and (after he discussed our case with the attorney) he feels that he may have been mistaken when he told me that the SOL depends on the state where the CA is located, but he would prefer that I speak directly with the attorney, so that there is no more confusion. We have not signed a contract with this attorney as yet because he has been out of the office and unable to speak with us regarding our concerns. We will make our decision on Monday after speaking with him today and after meeting with another attorney Monday afternoon.
If your attorney has any doubt yo the SOL, give him/her the case cites I provided above, especially the latter.
