I've been sued by a CA. First contact from the CA was in a summons I received. I answered the summons and sent the DV letter within the 30 days. However, during this time without a validation the court sent a scheduling order. The CA did not send validation till 12/05. This was after the scheduling order was set on 8/29/05. Does this action by the court violate my rights under FDCPA law that any collections (including suit) most stop until validation is sent? Any suggestions on how to proceed? I am from Oklahoma. Thanks
I don't think suit counts in this situation. If they had filed suit AFTER your DV, you might be able to argue that. The best course of action after having been served is to answer the summons with umbrella denials and as many affirmative defenses as you can find that apply.
I am sure that IF the summons is the actual first contact, they are held by FDCPA laws. This is stated in Heintz v Jenkins (514 U.S. 291, 299). I already had knowledge of this Supreme Court ruling. My question would be would a judge who sets a scheduling order be in violation of my FDCPA rights by scheduling this order without my DV being sent?
FDCPA only applies to third party collectors. It does not apply to courtroom judges. A judge is not a collector, nor is he party to a collection activity.
So I would have no legal issue for the legal proceedings that continued during the validation stage? I know that my SOL does not expire till 2/06 on this account. I have a few violations of the FDCPA and FCRA laws against the CA and the OC. The OC places the default on 3/05. I have court papers in which they filed a lawsuit for default back in 6/03. They also did not place in my CR that the account was disputed. The CA posted a collections on my CR on 3/06, validation was requested 6/06 and was not received till 12/06. They updated my CR on 3 occasions during this validation period. They also did not report this account as disputed. Now, my question is.....using these violations as leverage for a separate lawsuit, how could I send the lawyers(CA) a request to settle out of court? What wording would be best used to show that it would actually be in both of our interest to settle without further legal action? The CA is an assignee of the OC. I did not become a deadbeat debtor. The OC posted my account late 2 months in a row. I disputed that the payments were not late. My interest rate increased from 18.7 to 29.9 on a 6000.00 account. I asked for the interest rate to be returned to the 18.7 they refused. I then used a 6 internal hardship program in which they reduced my interest rate to 5.9. After that program, I signed up for a CC in which I made 2 payments through this program. However, the OC refused participation through this program and my apr returned to 29.9. I called and asked did they not want me to honor my agreement with them and I was told that they had other means to collect their money. I told them then they needed to do what they had to do.....I received a letter stating that they had received my request to stop communications and they would then send my account to a lawyer. 1st lawsuit by the OC was dismissed without prejudice by the plaintiff. 2nd lawsuit by the CA(assignee) has a court date of 3/06. Do you think I have any leverage to settle debt before the hearing.....or should I just secure a lawyer and file a suit against the OC and the CA? Can you tell I'm just a little bit at the end of my rope....thanks for any feedback..
Getting a lawyer is probably a good idea at this point. He can review your case point by point and give you educated legal advice. What I can say is, if you were served with a summons, answer that summons. Use whatever affirmative defenses you can and if you can show a paper trail of the violations you described, file a countersuit in the answer too. Again, this might be something you want to do with your lawyer. Whatever you do, don't go after the court and don't ignore the suit. You seem to motivated, but be careful. Do your homework about the FDCPA, the FCRA, and your home state laws. Many experts on creditboards.com/forums may be able to answer questions too. They do have a quicker response rate.
