I am being sued by a lawyer for a collection agency who bought acct. from an OC. I answered his summons as soon as I rec'd it hoping to take my chances in front of a judge, but the lawyer kept calling/emailing & threatening that I can't ignore him and he's not going to go away. Um, I had already answered and he rec'd it. I guess he doesn't want to go to court. The lawyer has a print-out with my name and address on it from the OC dated over three years ago. I cannot find an entry from the OC on any of the reports from any CRA, although I do remember owing something to the OC, there is no record of it anywhere. I got an attorney to deal with him, and she hasn't done much for me. She thinks I should just settle. I think the debt is beyond the SOL (in my state--Washington-- open is 3 yrs, written is 6) The CA attorney is arguing that this is a written agreement although he admitted to my attorney by email that the OC has neither the account agreement nor my signature on anything. He also says that I have to follow the SOL of the state the OC is located, not the state I live in. Does it sound like his arguments are sound? Are credit cards really written agreements and can someone sue me for breach of a written contract if they don't have the contract? Thanks so much.
Thanks Greg. I went back and read the correspondence from my atty. The CA doesn't even have an account agreement, with or without my signature, apparently. Their atty did say something disconcerting, though, that the terms the OC uses state that any agreement with them is governed by the laws of the state they're in, so sol for open agreements is 4 years, written is 5, which puts me within the sol. Weirdly their attorney said "regardless of which is used." Doesn't *he* at least know whether or not ccs are open or written? Now I'm kind of losing my nerve. I wanted to go to court because I thought I had a great case, but maybe I should just settle. Maybe the judge wouldn't care if they don't have my signature. I'm not having much luck in general lately with people giving me the benefit of the doubt. Ha.
You have to look at the agreement. For example, Cap One usually says the agreement is governed by Virginia law, where the SOL is three years. Go to court and tell the judge that you've asked for proof that it's your debt, including a copy of the original agreement.
Yeah, the CA lawyer said the agreement is governed by the state the company that issued the cc is in, which puts me within the sol. Don't know why I'm hearing so much about why it matters where you live and whether or not you moved to a different state in these cases, though. You really think I could win in court? The other side is more resistant to go than I am, so maybe that's my answer. I'm torn.
It's only governed by the laws of the state the OC is in IF that is what the agreement states. Many are silent, meaning that your state's laws apply. Why are you taking what an opposing attorney says as the truth? You need them to SHOW you (or the court) a copy of the agreement that says that.
What Hedwig said: Don't take your legal advice from the opposing counsel. Your lawyer's advice is probably based on the fact that their bill will continue to go up and you may not recover those fees. Consequently, the cheapest option might be to just pay them to go away instead of paying your lawyer for a while and then who knows what might happen. Basically, it's a known value vs. an unknown, potentially larger value. If you think you have a solid case, you could continue on pro se and consult your lawyer as necessary. And then just try to out paper them. But with that, you run the risk of making a procedural misstep and getting a default judgment which WILL include the opposing counsel's legal fees, accrued interest, etc. on top of the principal value being claimed. But that can be a rather tiring process for many non-lawyers (and even for many lawyers because it's not billable time).
I think they showed my lawyer the agreement, it just doesn't have my signature on it. It's AN agreement that the OC uses and they claim it's my agreement.
My attorney said what they will probably do if we go to court is to pull my bank records to see if I paid the last bill to the OC. All the CA has is one statement with my name and address printed on it that shows a cc payment. I guess if they can match that with my bank account records then it proves they're right about the whole amount? I feel like I should be able to see the accounting for the whole thing, which they've admitted they can't produce, but not sure that would hold up in court.
Showing one payment doesn't show the whole account. Nor does it mean that all the interest and fees they've added are legal. You don't know what will hold up until you're there. I can't understand why people are so afraid of fighting for their rights. If you lose, you really aren't any worse off. By the way, you should be collecting violations for couterclaims as well. That helps when you need to negotiate, if you do.
Hedwig, thanks. This is why I'm hesitant to go fight for my rights. I may be liable for the whole thing plus lawyer's fees.
By the way, there's no court date or case number or anything for this yet. Nothing on the original summons.
more in today... I said to my atty: Without an account agreement (which he admits below that he doesn't have) isn't it illegal to report to the credit reporting agencies (which he has done)? She answered: No, it is not illegal to report it without an agreement. That will just determine whether it is a written or oral contract to pay which only affects which statute of limitations applies and neither has run yet. I said: I would also need to see the accounting for how they even came up with this [amount the CA is asking for]. The breakdown of everything-- purchases, interest rates, tacked on costs? I don't want you to go over the amount of your retainer, though. If I went to court, could I just ask all these questions there? I'm thinking a judge as moderator wouldn't be such a bad thing. I was fully willing to go when I got served. She said: You will not be able to ask the questions in court. But, you can just ask everything you want to know in discovery (interrogatories and requests for production). Maybe that is the way to go. I can withdraw and you can send him the discovery. Then you can move for summary judgment (if he doesnâ??t do so first) and that will resolve the case one way or the other. Let me know what you want to do. I, mellowone, have no idea what a summary judgment is.
Now this is interesting as I do believe MBNA does say this as well, BUT when they send off to NAF and you try to use Delaware as SOL, it is a no go. ANyone know why that is??? Woofer
Wait a sec... Have you been sued yet or is this all BS??? You need to get yourself a CONSUMER LAWYER that can help YOU and also countersue these creeps. I think you are out of SOL they have nothing and that if you do it right you will get the case dismissed with prejudice This is why they are worried about going to court. YOu really should talk to another lawyer though to see what he she thinks of the whole thing. Woofer
I don't know that I'd get a lawyer, but I'd contact the court and see if a case has been filed against you. If it has, get copies of everything. You can do at least most of this yourself.
There is no case # on the summons and when I do a search on my name in my state's superior court web site nothing comes up.
I was issued a summons and I answered the atty by reg. mail. Couldn't file an answer w/the court because the case has not been filed yet. My lawyer is through NACA.
