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Discussion in 'Credit Talk' started by LRM216, Aug 18, 2003.
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I'm not a lawyer, but I think you should go to court and say you do not recall incurring these charges, and that you have never been given proof that the debt is yours.
In the meantime, try to see if they have violated any laws, or any of the court procedures.
You may want to have an initial consultation with an attorney just to see how to proceed. But just because they filed suit doesn't mean you have to pay without some proof.
And DON"T CALL THEM. Make sure any contact is in writing so you have proof of it.
Look over the entire text of the summons, if Arrow never contacted you, then the mini-miranda MUST appear on the summons (or within 5 days -- in case inclusion on the summons is prohibited by local law), also the summons should have to have the ("this is an attempt to collect a debt") noticeagain unless prohibited by local law.
This is actually where the delay in service comes to your assistance, the 5 day clock should have begain on the date of filing; in the latest the date of service, which is incorrectly being shown as the 12th, that means that the 5 days for the mini-miranda statement has expired (or will expire very shortly), a violation of the FDCPA if it was not included.
Contact Arrow, both directly, and through their attorney demanding immediate and complete validation of the account including a written application, invoices, etc. in accordance with the FDCPA.
Make sure to implicitly state that they have NEVER contacted you, and advised you of your rights under the FDCPA (if the mini-miranda isn't there.)
Be sure to request everything that you can possibly think of to request, since by requesting it you are preserving your FDCPA rights to force the collection activity to cease until they comply, and also giving yourself an affirmative defense, and grounds to counter-sue for damages under the FDCPA.
You will want to read on how to file an answer, but essentially you'll want to deny everything that they are alleging.
If the family member was the one who ordered it under your account, you want them to prove that it was in fact YOU who ordered it.
Thanks to both - to Jam - perhaps I should clarify. I did get a notice from Arrow but that was over 2 years ago and I never heard from them again, either thru the mail or telephone. Then Sunday, I received this Summons from out of the blue. The family member is my daughter so the items she ordered and pawned (drug problem) did get delivered to my address. I would be willing to pay the balance, I just cannot pay it in one full payment. The best I could do would be $100 per mo. and balance in full in late January. I just want to avoid garnishment at any cost as I am a widow, work everyday and am raising daughter's two children too. Would validating ( I have never validated this debt) with both Arrow and their atty help at this point or is it too late?? Also, if I write this letter to the atty representing Arrow to take monthly payments, do I still file an answer with the Court at the same time denying it all even if it was charged by my daughter?? Thanks again for your kind help.
Did you ever contact Arrow?
If not, technically they do not have proof that they contacted you and provided you with the mini-miranda and the "attempt to collect a debt" notices.
The most important part of the validation clause is that failure to request them to validate within 30 days only entitles them to the ASSUMPTION that the debt is valid; that assumption expires the second you request that they PROVE that the debt is valid. It also says that failure to dispute within the 30 days does not weive your other rights, including the right to request validation...
So its NEVER too late to request validation. They can always attempt to claim that they don't have to honor the validation request, but you then have a solid violation for continuing collection activity following the receipt of the validation request.
Also, if its been 2 years since they contacted you, check to see if the DOLA is within the statute of limitations within your state. If its not within the SOL then they are SOL...
Jam - unfortunately the SOL is within the time, it expires Oct 2004. I will validate today and send them out later this p.m. But, if I validate to both of them (Arrow and atty representing Arrow) when am I supposed to see if the atty representing Arrow will take monthly payments? I am confused about this. Do I wait until the 30 days after sending the validation, do I attempt to negotiate in lieu of validation and what do I do about answering the Summons. Do I still file an answer denying everything even if I negotiate or validate?? Please walk me thru this as I am a little confused. I'm sorry for being so dense, just never had this happen.
Don't negotiate until they provide validation. The purpose of validation is to get them to put up the proof that they have to justify filing the suit.
Under the FDCPA all collection activity, including the filed suit has to be ceased if they can not provide the validation within the time before the court date is scheduled for (in the case of the court date, the hearing has to be stayed).
You still need to file the answer (denial of everything), and since you'll have had filed a validation request you'll be able to respond that you have asked that the Plaintiff prove the allegations, and they have not provided it. (You'll have to read other posts for web sites on answers; in PA at the magistrate level you don't need them, just need to tell the magistrate that you intend to appear.)
If they suddenly decide to offer a settlement before validating, its collection activity following the validation of debts request; and usually an indicator that they can't obtain the validation.
Jam - a million thanks.
1*Would validating ( I have never validated this debt) with both Arrow and their atty help at this point or is it too late??
2*Also, if I write this letter to the atty representing Arrow to take monthly payments, do I still file an answer with the Court at the same time denying it all even if it was charged by my daughter?? Thanks again for your kind help.
1*It's never to late.
2*You have to answer the court or they will more than likely get a default judgment against you.
I would advise against offering payments at this point.
Also you don't validate and offer to pay at the same time the two contradict each other.
If you demand validation you can use this step in support of your answers to the summons or complaint.
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But, if I validate to both of them (Arrow and atty representing Arrow)
1*when am I supposed to see if the atty representing Arrow will take monthly payments?
2*Do I wait until the 30 days after sending the validation,
3 do I attempt to negotiate in lieu of validation and
4*what do I do about answering the Summons.
5*Do I still file an answer denying everything even if I negotiate or validate??
Please walk me thru this as I am a little confused. I'm sorry for being so dense, just never had this happen.
1*Why bother with validation if you're just going to pay it anyhow?
Why pay a non validated debt?
2*Wait to do what?
3*You still have to answer the summons. If you do negotiate it makes it harder to deny the claims whereas if you demand validation you can use the validation request to support your answers to the summons.
4* & 5* You have to file an answer so how do you deny anything if you admit the claims by agreeing to pay anything?
Why not validate and use it to support your answers in denying the claims in the summons instead?
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