You guys have helped me so much before, I need some help with this one. I have filed a small claims suit against AA. The court date is 11/25. I am suing AA for $2500. Reasons are have not VOD the account, still trying to collect on a disputed account(did not remove the tradeline, just said it is being disputed). AA was not the first CA to have the account. They are the third CA to have this account. Also, I have an old CRA report which shows the default started in 02/2002 which means they have reaged the account and it is sol. A representative from AA called me and said they were willing to remove all tradelines from all CRAs and close the account, if I accept. I told them I would accept that with also a settlement of $2k. He said they may move the case to federal court, if I refuse. So here is my question, should I let him know that he is not the original CA and I can show letters to the other CAs who could not VOD the account and deleted their tradeline? Or should I just stall him and hit them with this information in court, if it goes to small claims? Also, how fast can he switch this to federal if the court date is Tuesday 11/25?
1.Switch to federal court is not always a bad thing as there more up on consumer law. 2.If their willing to settle it talls you they don't nave a strong case. 3.See how little they will settle with you for i'm sure of their many violations. 4.On switching to federal i don't know how busy their case load is. 5,Im' sure in discovery your evidenice will come to light and they might want to settle out of court.
They are unwilling to pay anything, just delete the tradeline. Also, I have the "Admission by silence" letter I sent them so time ago.
I don't know what assistance please brief about this sounds like something i can use.I do think there bluffing you.And i don't think they have a leg to stand on other than drawing this out until the last second.
He is trying to bluff you. If they want to take it to federal let them do so. I'd call them up and tell them to remand to federal if I were you. Tell them you stand firm on your demands. That is about what you would get in federal plus you can get your filing fees and attorney fees.
"Admission of Silence" is a letter you can send after you have requested the VOD and they do not respond. Here is what the letter looks like. This certified letter is to formally advise you that I believe your company has violated several of my consumer rights. Specifically you violated one or more of the following: -failed to validate a debt at my request- FDCPA violation -continued to report a disputed debt to the CRA- FCRA violation -continued to attempt to collect a disputed debt- FDCPA violation -continued to report a disputed debt that is over 7 years old - FDCPA violation Not only have you ignored my prior requests for validation of debt (proof enclosed- receipt copies or letter copies) but you continue to report this debt to the credit bureaus causing damage to my character. This letter will again request that you follow the FDCPA and provide the following: Validation of Debt Request -Proof of your right to own/collect this alleged debt -Balance claimed including all fees, interest and penalties -Contract bearing my personal signature - Return completed Creditor Disclosure Statement As you may be aware, "Admission by Silence" legally means that you had a duty to defend your position but failed to do so and if my claims were untrue you would have been compelled to deny my charges. I will use the Admission by Silence in my defense should I be summons to court or take action against you. I expect to receive proof requested above, within 15 days of receipt of this letter. Should you again ignore my request for validation of debt I reserve the right to sue your company for violations of my consumer rights as indicated under both the FDCPA and the FCRA. I may seek damages from you if warranted. Regards,
RE: move to federal court. This is definitely a bluff. I had a CA try that on me and when I didn't blink, they backed off. Basically, they said "You know, our lawyer has advised me that they might have to move the case to Federal Court if we can't reach a (ridiculously low) settlement on this." I said, "Well, you know, you might be right. Maybe this matter would be better discussed in front of a Federal judge. Should I draw up the paperwork, or do you want your lawyer to do that?" Then the subject changed. Hmmmm... I wonder why? Except for the filing fee being higher, I agree that FDCPA cases have a better chance for the plaintiff (consumer) in federal court if it goes to trial. In my neighborhood, they seem to move through the system faster as well. (Small-claims had a 5-month wait, Federal court had a couple of weeks). Also, the federal cases are all on line so it's MUCH easier to do research than trying to find cases in a superior, district or small-claims court. Bottom line, they're trying to rattle you and your small-claims case. In this case, it's sorta like throwing Brer Rabbit into the brier patch. Just make sure your case is solid and well put-together. Federal judges don't like to screw around with bogus cases.
Just a nit, however, re: your list... -failed to validate a debt at my request- FDCPA violation -continued to report a disputed debt to the CRA- FCRA violation -continued to attempt to collect a disputed debt- FDCPA violation -continued to report a disputed debt that is over 7 years old - FDCPA violation failing to validate is not an FDCPA violation, continued collection without verification, however, is. Attempting to collect on a disputed debt, is not a violation, but continued collection without verification, is. Reporting a disputed debt over 7 yrs, well reporting any debt beyond 7 yrs is an FCRA not an FDCPA violation and a problem for the credit reporting agencies, not the CA. Reaging the debt is an FCRA violation (IIRC). Also: Validation of Debt Request -Proof of your right to own/collect this alleged debt -Balance claimed including all fees, interest and penalties -Contract bearing my personal signature - Return completed Creditor Disclosure Statement Not all of these are required by the FDCPA. The rules of evidence, perhaps (depending on the judge), but not the FDCPA.
I'll nit some more. According to your first post, the debt is not over 7 years old - that's not to say they didn't reage it, but it can still be on your report. Admission by silence - any case law? Did you dispute within 30 days of receiving their first communication? Validation requests - Don't know what state you are in, but in TX, a contract bearing a signature is not required to prove a debt. What proves a debt is what a court says proves it. What is a Creditor's Disclosure Statement? I might take their original deal...
I'll nit some more. According to your first post, the debt is not over 7 years old - that's not to say they didn't reage it, but it can still be on your report. Admission by silence - any case law? Sounds almost like the debunked estoppel theory. Did you dispute within 30 days of receiving their first communication? Validation requests - Don't know what state you are in, but in TX, a contract bearing a signature is not required to prove a debt. What proves a debt is what a court says proves it. What is a Creditor's Disclosure Statement? I might take their original deal... Oh, and although I haven't heard much about them lately, Asset doesn't tend to puff and bluff, they (at least used to) take it all the way.
JLynn: Are you saying estoppel does not hold up in court? I do not remember seeing anything from AA. I live in FL and SOL is 4 yrs for written contract. When I say is it SOL, I found an old credit report with the OC still having the account and default started in 2/2002.
CCBOB: are you saying the only violation I have is "continuing to collect w/o verification" AA is using 2005 as the date the debt was open, but that was the date they bought the account. NCO had the account before they did
I'm just saying that you should read the FDCPA and some of the cases that have be brought under it. It's all there in black-and-white (albeit in legalese). Nowhere does it say they have to respond to your validation request. It just says that they can't continue collecting until they do. Nowhere does it say they have to provide you with a contract, proof of anything, etc. It does say they have to collect: a) verification of the debt or any copy of a judgment or b) the name and address of the original creditor, and send you a copy. You, as a consumer might think that "verification of the debt" includes all sorts of contracts, statements, etc. but the CA might think that just the last bill with your name and amount on it is sufficient (and, insofar as the FDCPA is concerned, it probably is). If you put yourself in the CA's shoes, they might even think they could meet the test of verification, to the extent that they can continue collection, by just sending you the name and address of the OC. So, if they've done that, there they go and there goes your argument. Now things like reaging the debt, trying to claim a new collection account is a new debt, etc. are not allowed, but they aren't prohibited under the FDCPA. This behavior is described under the FCBA (IIRC), which has a lot duller teeth. If you're going to court, you should know the facts and the law(s) that you want to apply as well as what defenses your opponent will apply. Otherwise you'll just get chewed up and spit out the window.
CCBob: Now, you have me a little worried. Before you said to let them go to federal court. Now, you say I might not have a case. So here is what I got: 1. I have the letter I sent to the NCO, who first had the account and they deleted their tradeline after I requested VOD. 2. This debt is time-barred ( defaulted in 2002 - FL SOL is 4 yrs) 3. They never responded to me "admission by silence" letter 4. AA changed the balance from $412 to $462.88. 5. AA has reaged the account 6. AA trying to colect on a debt not verified If you are saying this is a lost cause for me, maybe I should take their offer to just delete the account.
1. case closed. you requested validation, they chose to go away. This is now a non-issue. 2. this is a defense if they take YOU to court over the debt to try and get a judgment. You might be able to assert they are collecting on a non-collectable debt, but that may or may not be an FDCPA violation (you need to read the fine print of the FDCPA and see if it applies). If you can cite some other cases that have been settled or appealed and won, that would be even better. 3. I don' think this will go very far (but I'm not a lawyer so what would I know?) My defense if I was the CA would be, that it had no bearing on the collection and I had no obligation to respond so I didn't. That I didn't respond proves nothing. 4. That could be the result of statuory or contractual interest. You might be entitled to an accounting, but there's nothing wrong with changing the values if they have some legal reason to do so. 5. That might be an FCBA violation so you should cite the appropriate statute. 6. If they haven't provided what the FDCPA considers verification of the debt (not what YOU might consider) then that's enough to go forward. Just make sure you can prove (citing case law, if possible) that they are in the wrong. They will say that whatever they sent you constitutes validatoin per the FDCPA so you'll have to show that it doesn't. Remember, as the accuser, the burden of proof is on you. Whether you should go forward or not is up to you and how well you can present yourself and your case.
Remand to federal court simply means that a plaintiff that has filed an action in a state court has the ability to ask the federal court to hear the case. I believe that in order for the federal court to accept the case it must have jurisdiction to hear the case. In short there has to be a federal question they can ask the court to decide on or the federal court has no jurisdiction and will not take the case. If the case is accepted by the federal court the defendant has the right to ask the federal court to remand it back to the state court if he has grounds to do so. If they have no federal question to ask but are telling you they are going to send it to the federal court then they are trying to scare you. Threatening to take it to federal court without intention to do so might be an FDCPA violation too. If indeed it turns out that they were simply trying to scare you then you just might have a cause of action against them in federal court.
Doesn't matter. Except in one or two states they can continue to collect, time barred means they can't sue you and win if you raise the SOL as an affirmative defense. Any case law that says they have to? Most consumers thru out the estoppel letters years ago. If the original contract allows interest to be charged - they can. Not from anything you have said here. The 2005 as the date opened, is the date it was opened with their office - nothing wrong with that, as long as the default date aka date to calculate removal does not change. That's the only chance you have, and its weak... I would. If the default date is 2/02, and they have not changed that, it will fall off in February.
