Today a process server got past security and served my mother with a subpoena mean for my fiance'. She is being sued by Discover for $8,000. I disputed it with the CRA's but I can't find a Validation Demand. It seems it never made it to a collection agency. All we received was an offer from a local attorney offering to represent me "because I'm being sued by Discover Financial Services." This was in 1/16/04 by Rodier an Rodier. I subsequently looked up her name in the County Clerk's records and saw no lis-pendens. Nor do I see one now. According to the credit reports it was, "charged off by Discover as a bad debt" on 10/2003 In the complaint they only provide the terms and conditions of the credit card. Her signature is not anywhere on the paperwork. Should I send a validation letter now? Is it a good idea to answer the court or deal with the default judgment later? What's the best way to deal with this?
It is generally better to deal with legal action before you have a default judgement. Although you should insist on substantiation of the debt they claim is owed, demands for validation will not prevent them from going to court. If this suit is not actually against your mother (assuming she is not jointly responsible, a cosigner, or at least an authorized user on the account), you have two other issues: 1) The creditor has disclosed the debt to your mother, a FDCPA violation against the debtor. 2) The process server has made an error in service, not serving the party being sued. Who does the process server claim was served in the documents filed with the court? Who did the process server say they were serving when they presented your mother with the summons? Is there any reason why they would presume that serving your mother would serve your fiance? Don't lose sight, however, of the fact that you will need to deal with the legal action. The issues of service will likely only delay this.
It's my fiance' that has the alleged debt. I demanded validation and sent a cease and desist letter from another collect in 2003. What I never saw before was that the court asks for an answer in 20 days. Included in the paperwork was a FDCPA Notice that states I have 30 days to ask for "verification." All that's included in the court papers is a copy of the "Terms and Conditions." No original contract bearing her signature. This debt has been charged off since 10/2003. And passed through several collection agencies. Every time I would demand validation they would sell it off to another. Date of last activity was 8/2002 according to the credit reports. In Florida there's a 4 year SOL. So I wonder what the true date is that started the SOL clock. How can I find that out? Below is a certified letter I sent to the Attorney and Discover. I have not as yet replied to the court. Like I stated previously. My Fiance' is too meek at this time to show up in court and I'm not an attorney. Can an answer stop it without having to show up in court? Or will an answer weaken my position when I try to get a default judgment vacated later on down the road? ------------------- Johnathan Singer Esq. Pollack & Rosen 800 Douglas Road Coral Gables, FL 33134 305-448-0006 7/5/05 Re Discover Card Validation Greetings: Thank you for your recent inquiry. This is not a refusal to pay, but a notice that your claim is disputed. This is a second request for validation made pursuant to the Fair Debt Collection Practices Act. In addition a cease and desist letter was sent 6/2/03 Allied Interstate. Please complete the attached form and follow its instructions and your claim will be processed as soon as this information is received. Please be advised that I am not requesting a "verification" that you have my mailing address, I am requesting a "validation;" that is, competent evidence that I have some contractual obligation to pay you. Providing assorted photocopies of documents without a signature is not sufficient. You should also be aware that sending unsubstantiated demands for payment through the United States Mail System might constitute mail fraud under federal and state law. You may wish to consult with a competent legal advisor before your next communication with me. Your failure to satisfy this request within the requirements of the Fair Debt Collection Practices Act will be construed as your absolute waiver of any and all claims against me, and your tacit agreement to compensate me for costs and Attorney fees. The systematic re-selling of a disputed debt may constitute fraud and a criminal complaint violation as per the RICO Act. This may result in the piercing of the corporate veil and expose Discoverâ??s Officers to personal liability. Discover, Allied Services as well as POLLACK & ROSEN will be held liable in Federal Court for their repeated violations. Best regards, Shake Potoukian C.C. â?? Discover Card services C.C. â?? Allied Services C.C. â?? State Attorneys Office C.C. â?? Florida Bar CREDITOR DISCLOSURE STATEMENT Name and Address of Collector (assignee): _______________________________________________________________________ Name and Address of Debtor: _______________________________________________________________________ Account Number(s): What are the terms of assignment for this account? You may attach a facsimile of any records relating to such terms. _______________________________________________________________________ Have any insurance claims been made by any creditor or assignee regarding this account? Yes / no _______________________________________________________________________ Has the purported balanced of this account been used in any tax deduction claim? Yes / no _______________________________________________________________________ Please list the particular products or services sold by the collector to the debtor and the dollar amount of each: _______________________________________________________________________ Upon failure or refusal of collector to validate this collection action, collector agrees to waive all claims against the debtor named herein and pay debtor for all costs and attorney fees involved in defending this collection action. X________________________________ _________________ Authorized signature for Collector Date Please return this completed form and attach all assignment or other transfer agreements that would establish your right to collect this debt. Your claim cannot be considered if any portion of this form is not completed and returned with the required documents. This is a request for validation made pursuant to the Fair Debt Collection Practices Act. If you do not respond as required by this law, your claim will not be considered and you may be liable for damages for continued collection efforts. Please allow thirty days for processing after receipt of your request.
