My mother just got served by Schiff for a $1900 Fashion Bug charge which was opened with WFNNB. It is a valid debt and she said the last time she paid on it was November 2006 (statute here is 10 years). I've found their agreement https://onlineaccess2.mycreditcard.cc/fashionbug?Action=FAQ.jsp#tcc but don't see anything about governing laws (like Cap One has Virginia in their agreement) so I assume her state is used for SOL. My question is what should her response be since there are only 3 sections to reply in and none reflect hardship. She's 66, on Social Security with a small USPS pension and lives in a rented house. I told her they could get a judgment if she doesn't reply. The jurisdictional limit (RI) is $1500. She really can't afford to pay this and I can't pay it for her. Thoughts?
You should find a good attorney for your mother. You're at the point where it will definitely help to have one. The link you gave looks like it's just the FAQ, not the actual T&C. Anyway, if you determine that the debt is still within the SOL, then they can legally get a judgement and collect the debt. I think you should still request validation, since that's your mother's right under the FDCPA, and also file an answer denying what is owed because how do you know that the number they're claiming she owes is right? They haven't provided validation right? This will at least prevent them from getting a default judgement and will hopefully buy your mother (or you and any other siblings) more time to pull together the necessary money to settle this debt once and for all. Since it is valid, that should be your goal.
A lawyer will cost more than the $1500 jurisdictional limit so I was going to try to help her myself. That may not be the best idea. LOL Yes, it was the FAQs, I can't seem to find the Terms. If I could and it said something like Cap One's do I would claim time barred and be all set. If anyone can find it I'd be in your debt. I will write a letter for her requesting validation. They have a "proof of claim and military service affidavit" from Portfolio Recovery (who was one of the companies that had this before) stapled to the claim, that's all. No statements or letters. Like I said, she's not working and only has social security and a postal pension. I have helped too much recently so no, my goal is not to pay this off. My goal is to get this squashed if I can. If not, she'll have to deal with the judgment. She has nothing.
Your local courthouse may have a legal self-help section. It may not be at the same place as small-claims court, but the staff there should be able to tell you where to find it. This may help you prepare a response. Remember that filings often have very specific formatting requests, and you don't want to have your response rejected because your margins were only 1.25" instead of 1.5", or because you paperclipped when you should have stapled. That being said, this is the first I've heard of a small-claims court accepting filings. I've been sued in the past, and the only form I had to send back had a checkbox for "I will appear to defend myself", a checkbox for "I will file a counterclaim", and a checkbox for "I concede to the plaintiff's claim and/or will not appear". It was by no means asking for a formal response. Usually, from what I've seen, small claims court is purely by appearance only -- you actually CAN'T file a formal motion or demand. I always assumed it was that way everywhere, but I could be wrong. What exactly does your form say?
sparq, a copy of the small claims info can be found here - RI District Court - Instructions for* Small Claims Defendant This is an older form: http://www.courts.state.ri.us/district/pdf/Small_Claims_Notice_of_Suit.pdf The second page of hers says: THIS IS MY ANSWER: I disagree with the claim of the Plaintiff(s) because: THIS IS MY ANSWER: I admit I owe the claim and judgment may enter against me. I need more time to pay for the following reason __________________. THIS IS MY COUNTERCLAIM: The Plaintiff owes me the following sum for the following reason. By filing this counterclaim I waive my right to appeal on the counterclaim only. I've never been sued before so maybe my terminology is off. ____________________ Here is what I have discovered so far. Spirit of America Bank was the original issuer and I gave they were either absorbed or they sold their card holdings to WFNNB. I was able to get a printout of current credit card disclosures by applying for the card myself. This is one section which really piques my interest. It says: I also acknowledge that there is no agreement between WFNNB and me until WFNNB approves my credit application and accepts the credit card agreement at its office in Delaware and that the credit card agreement is deemed to be made in Delaware. Cards are issued and credit is extended by WFNNB, Wilmington, Delaware. If I'm reading this right, it means the SOL is Delaware's, not RI. In that case, it would be 3 or 4 years depending on what they consider this account. The last activity was 11/2006 so it would be time barred. Whew. Am I right? Thanks for the replies!
Ok, gotcha. I am not a lawyer, but I think the first box might be the one you want. Not being a lawyer, I may be completely wrong -- but it would seem to me that checking the first box is the one that indicates you want to go in and plead your case before a judge. What you're describing about Delaware is known as a "choice of law" clause. In theory, it sets the laws under which your agreement -- and any subsequent lawsuits -- will be governed. Unfortunately, this doesn't always work the way you'd think. It really gets into an area of substantive vs procedural law, and I'm afraid that's just way beyond my limited level of knowledge. Google can help you out. However, since your mother is the one being sued, she'll need to be the one in court raising this as a defense. You won't be able to speak on her behalf at the trial.
Again, thanks so much for your insight. I know my mother needs to handle this on her own but if I can send her in the right direction it will be helpful. I found another disclosure that has a specific "governing law" section. It seems quite clear that Delaware holds the SOL. It reads: This Agreement is governed by laws of the state in which the WFNNB main office is located, and applicable federal law. This is the law we are speaking of when we refer to a term permitted or required by applicable law. If this is presented to the lawyer (Schiff) can they simply withdraw the case?
The simple answer to your question is yes. Their lawyer can withdraw the case at any time for any reason. However, just because you present it to him doesn't mean that he WILL withdraw the case. Bear in mind that the choice-of-law provision is not always enforceable. I know this sounds backwards, but just because it's in your agreement doesn't make it binding. In many (if not most) cases, the COL is simply ignored by the court. Again, this gets into a matter of substantive vs procedural law that goes way beyond the level of help a forum can provide. My own personal philosophy is that I never let the other side know what I'm doing. First, there's a chance his lawyer will not show up in court. This is surprisingly common (although not guaranteed) in debt collection cases. If you start contacting the lawyer directly, it may tip him off that this is one case he needs to show up on. Second, he may not be prepared to defend against a COL claim in your state. Perhaps there's ample caselaw that says the COL is always to be ignored, but it's only useful if he brings it up himself. By telling him about your COL, you're simply giving him a courtesy warning on what he needs to prepare for. Maybe this lawyer graduated last in his class and has never even handled a COL. Who knows? After all, 50% of all lawyers graduated in the bottom half of their class! How you handle this is up to you. I personally would not contact the lawyer if I found myself in a situation similar to yours, but that's your call.
Again, that you for your assistance. Last question, I promise! I assumed, incorrectly I guess, that if she checked the top box and said she disagreed with the suit because of the choice of law/time barred thing, that Schiff would be notified (and, presumably, withdraw the case). I didn't mean we'd contact them directly. So it is not wise to disagree at this juncture? Just at the trial? Thanks
