In preparing for our upcoming lawsuit, we're trying to think through all of the issues the CA may try to use in defending against us. I know there are instances in which a judge will use the fact that a person has made some payments on a loan to make the determination that the loan agreement did, in fact exist. (This info via People's Court, Judge Judy, etc...) Can anyone help me with where the basis for this principle is found in law and how it can be overcome? It is obvious that people do sometimes pay bills that aren't theirs when the bills aren't large and the person doesn't consider their value worth the time and effort it would take to fight them. Or, someone might pay a bill if they had other bills by the same creditor and just assumed they were all valid, even though some may have been in error. Anyway, any help regarding what law they might cite and what we would need to rebut would be greatly appreciated. DemPooches
It might be construed as an affirmation of debt, but that still doesn't establish the amount of the debt or the terms of payment. This really depends upon how you word your lawsuit and what specifically your complaints are. If you are filing in district court, the defense will have to file an answer and you also have the right to perform interrogatories as well as subpoena their records. A little more information is in order to properly answer your question. I am in by means a lawyer but I have spent the last couple of weeks doing exactly what you are doing now. I spent several hours in a local law library pouring over information. It was very informative, but the OC agreed to settle with me when I sent them my intent to sue.
quasar, You state they have to file an answer? written answer or verbally on the date of the trial? Reason I ask is I filed a Motion of Dismissal on a trial on July 9th, I haven't received an answer on it from the other side. What is the normal procedures for this?
We've already filed. When we sent the intent to sue they called us and I don't think they believed we were really going to sue. Our filing is in small claims (Magistrate's) court so there is no discovery. Since the CRA is incorporated, our state law requires they be represented by an attorney. So we're trying to cover as many bases as we can. We've tried searching online, but there is so much to try to go through we're getting a little overwhelmed and frustrated trying to find what we need. This is only one topic we wanted to make sure was covered and we were hoping someone here might have dealt with a similar issue and and be able and willing to provide us the benefit of their experience. Thanks much for taking the time to respond. DemPooches
While I don't know how much help this is, I'm throwing it out there because you never know what will help somebody or where it will lead. I have a response to a complaint by the administrator of the Collection Agency Board of Colorado. The statement reads: Even if a debt is ultimately paid in full, any dispute from the consumer should be reported to the credit bureaus. Now, my thinking is that a dispute must be taken seriously at any point in the collection process based on this. Therefore, payments should not detract from the legal process which should be followed. The CA got a letter of admonition because of their lack of reporting it. I figure every little tidbit is something.
Kiyi, When you serve someone with a summons and complaint, they have a certain amount of time to file an answer. In this case you are the plantiff. I believe your motion to dismiss would be a motion to be decided by the court, not by the defendant. Unless all the facts are undisputed or you are the defendant and have an affirmative defense and the plantiffs have no other complaints which were not covered by your defense, you are unlikely to get the case dismissed. I take it that you are the defendant?
Are you being sued by the CA and responding with a counterclaim? If so, check your State's statutes for anything that relates to "renewing terms of contracts" many States have a provision either in their statutes or codes that say a payment on an account does not extend the SOL unless there is a signed agreement.
Dempooches, I believe that they can only use those defenses as outlined in their answer, so you may not want to expend the extra effort to research possibilites until you know how they will try to defend the case. I do know that 80% + of cases are settled before reaching the court date. Perhaps you would be best served by working with them to reach an amicable resolution. I do not know about your small claims proceeding, but I know in some states, you will have to go through a pre trial dispute resolution process to see if the dispute can be settled. Might as well try first. I don't have any citations to help you. Sorry. But I can give you the path I followed to get all mine. I recommend a book called "Legal Research for Beginners". http://www.amazon.com/exec/obidos/ASIN/0812097688/qid=1025822222/ref=sr_11_0_1/103-4727830-8515024 I picked it up for $12 at Borders. I also picked up a mini-Black's Law dictionary for about $15. These books are great! Be prepared to spend a couple of nights reading the research book. It will clearly describe a process for you to follow. Anyone can do it with a little persistance. I then went online to find out which Universities had a legal library near me. I sent an e-mail to each one to find out their policy on public access. Most of them allow public access, some only limit the hours. You won't be able to check anything out, but you can make photocopies. Some distric courts also have law libraries that are open to the public. Take your research book, legal pad, and a roll of quarters. The people at the library were reallu helpful. Ask for a library map, it will save you time. As for the actual search, I will leave that to the outline in the book. I too tried the online thing first and couldn't find much. I found hundreds of citations at the library. THE OC RAN SCARED.
If a little more information is helpful, we're filing for violations of the FDCPA Section 807 False or misleading representations, Section 807 Harrassment, FCRA (Section 623, b - Failure to validate after dispute with CRA, Section 604 Pulling an AR inquiry with no permissable purpose), Loss of Opportunity, Defamation. We're concerned they might try to say our entire basis is moot because the 2 accounts were paid (they totalled $178). We addressed why we paid them as part of the background facts included in our complaint to attempt to "head off" this problem. We may be able to simply fall back on the fact that our complaint is based on "reporting" and "maintaining an accurate record" in other words, based on their duties under the FDCPA and FCRA and that whether or not they received payment is not relevant to the issue of correct reporting. As I indicated, we're just trying to cover our bases now to be prepared for as many possibilities as we can. DemPooches
Thanks Quasar27, great suggestions. Will pick them up and do some digging. Yes, there will be a pre-trial settlement conference, and we want to be ready for bear in it. Thanks again. DemPooches
I will put this in a nutshell. Back in March I checked my credit reports to start cleaning up my life. I called IC systems and they no longer had the account it was sent to some collection agency/attorney. I called them up and talked with them for a few minutes asking about it, then they said they would send me some information. I got a pos computer printout that doesn't even add up to the amount. and 3 days later a summons. joy. Now, I never recieved any information regarding this debt from them, no verification, no statement saying I had 30 days to validate the debt blah blah you know...Hell the warrant didn't even have anything. I have contacted these shitheads 3 times and they say it will be more cause of attorney fees etc. These putzes have violated every single part of the fcra and fdcpa and they are lawyers LOL. I filed a written dismissal over a month ago, I haven't heard anything else from it. What do you mean it won't be dismissed? I did everything by the book. There is no contract, nothing, just an application.
Kiyi, I do not know enough about your situation to be honest. I don't mean to discourage you in any way. In general, there are very specific laws, state by state and federal for a judge to be able to dismiss a case. A dismissal is similar to a default judgement. The judge cannot simply dismiss unless certain factual issues are satisfied. These requirements are not up for any type of judgement call, the judge is bound by the law. If your motion to dismiss is not based completely on an affirmative defense which cannot be questioned, but is a matter of undisputed fact, then a judge cannot dismiss the case. There are also several different types of dismissals, with prejudice, without prejudice, etc, etc. You can be sure that your motion to dismiss will be countered by the plantiff unless he knows that he doesn't have enough evidence to win. Even if the judge does dismiss the case, you want be aware under which circumstances that they can sue you again.
Ok this is what I want to know, I filed the dismissal, based that the collection agency violated my rights fdcpa and fcra and then sued me. I listed the things they did etc. No response.
Kiyi, Obviously I'm not an expert in this or I wouldn't have started this thread to get assistance with my lawsuit. That being said, in your motion for dismissal I wonder if suing you for the debt and violating your rights might actually be two separate issues. In other words, I wonder if they can sue you for the debt, and you can sue them for the violations, but one wouldn't necessarily cancel out the other. I don't know the answer to this, but am happy to share my thread with you if it helps you gain the answer you need to assist you in proceeding with your lawsuit. All the best! DemPooches
ROFL sorry I didn't mean to hijack the thread but its something that has alot of merit and i thought there would be some conclusions to what could happen and what needs to happen. Just looking for the answers to good arguments is all.
No problem at all Kiyi, I hope we can both end up with the answers we need. I've already ordered the books Quasar27 suggested and you might want to do the same. It sounds like they are "must read" material for anyone who's sticking their toes into the litigation waters. DemPooches
I filed dismissal and countersued LOL. They have to object to the dismissal in writing, I Just read that in the tennessee laws. So, I believe they are pretty well flambayed. WOOT! But knowing my luck? It will all be for nil when I show up. Who really knows til the day is happens, its like a crapshoot.
Hopefully they will not respond and your state laws will allow the judge to dismiss since they didn't respond. In any case, you will get a response from the court within a certain number of days. If you have questions, you can ask the clerk if they have received an answer to your motion. You need to look up the law about this dismissal. Unless you get a dismissal with prejudice, they have the right to sue you again for the same item. You might also consider filing a motion for summary judgement on your countersuit. If they don't show/answer and your case is dismissed, how will the judge hear your countersuit? Once again, I am not familiar with your state laws or procedures but normally they will have 30-60 days to respond to your motion. Any motion must also be served to you in a fashion as specified by your state law. Where I am, that means anything from certified mail all the way to being served by the sheriff.
Ok according to my laws they have to respond in 10-20 days depending on the circumstances. its been over 30 days already. They are supposed to send me a copy via certified mail. Thanks for the idea on the motion of summery judgment on the countersuit I didn't think of that. Good help indeedy.
