is this legal?

Well, it's continued collection activity under the FDCPA; they should not have filed before giving you the name of the OC and the validation you requested.

ADR is fairly common in courts. Personally, I'm not sure I'd go for it, especially with counterclaims.

Oh, and false and misleading representation in an attempt to collect a debt re the name of the OC.

 

"original creditor was "Visa Platinum" and include a copy of a contract but still no copy of the alleged contract I signed and bearing my signature."

As is obvious, "Visa Platinum" is not a creditor, and doesn't even identify one.
What, if anything, did they send to indicate YOU actually had a particular account with a particular creditor? What, if anything, is there to indicate that this was obtained from the original creditor's records? Any statements? Any account number? Any dates?

What is the "contract", just a copy of a generic card agreement update such as is often inserted with statements? Is there any creditor name on it? Is there any date on it? Does it refer to any account number?

Since FDCPA suits are based on claims independent of whether the alleged debt is valid and owed or not, contact an attorney who has experience in consumer debt collection and FDCPA suits. You may want to sue for the violations, even as you defend against their claim, and you might want to see if you can find an attorney willing to do both, based on his assessment of winning on the violations for recovering his fees. You are practically handing him all he needs.

See: www.naca.net

 

Did you ever have a Bank One account? With an account number, you should be able to independently determine if it was ever your account, or if they have misidentified you. Did you have a Bank One account showing on your reports?

 

I have a few questions here that I think if answered will help you out a great deal. Here we go . . .

1) First and foremost, I think everyone has overlooked the most obvious question which is did you submit a "timely" request for validation? That is to say, did you request validation from the CA within 30 days from your reciept of their initial dunning letter? If not, their suit is not continued collection activity because the FDCPA only prescribes that validation is required if requested within the 30 day window. If you requested validation outside the 30 day window, the can continue collection activity without providing you validation.

2) I take it you are being sued in the Commonwealth of Virginia. Please correct me if I am remiss. Reason I presume you're in Virginia is because you mention a "Motion for Judgment" rather than Complaint. Virginia is the only jurisdiction I can think of that still uses this terminology insofar as they did, up until last year, maintain two sides of their court (equity & law). If you are in fact in VA, you will need some real procedural assistance.

3) Reverting back to the above terminology aforesaid, are you sure the Caption in the pleading read "Motion for Judgement" or "Motion for Summary Judgement"? Is this the document you received with the summons or something recieved after you filed your Answer? The MJ is simply a Complaint to which you have already filed your responsive pleading. A MSJ is them moving for disposition on either liability, damages, or both. They cannot get a "judgment" on a Complaint alone (unless your answer was untimely) but they can get pretty much it's likeness on a MSJ insofar as it is dispositive.

4) Assuming it is only a Motion for Judgment and assuming you are in VA, file a motion to leave so that you may amend your Answer to a Bill of Particulars (motion for more definite statement for us normal people). Therein, ask where they aquired the account, when they aquired the account, from who they acquired the account, how much they paid for the account, and for strict proof of validation that they have standing to sue upon the account (a bill of sale more or less). This will work for now but will have to go a little further later down the line if they reply.

5) Assuming it is a MSJ and jurisdiction is irrelevant here, you need to file an oppositon, memorandum in support thereof, cross-motion for summary judgment/matter of law if outside VA. This is where you state they have offered the Court no proof they own or you owe the account they are suing upon. My guess is they're relying on a Affadavit which will not fly if this goes to even only an oral hearing on the motions and definately not at trial (unless they bring in the affiant).

Whew . . . hope that helps.

 

You will need to file a Motion to Leave in order to amend your Answer to include a Counter-Claim for violations of the FDCPA. You will need to ask the court to take the MSJ in abeyance until your motion to leave is granted and your answer is filed. If they fail to grant it or they do, thereafter, you will need to file an opposition to the MSJ. You will need to also include your own MSJ for your Counter on the FDCPA violations as well.

In your opposition, you just outline they have no proof that they own the debt thus have the standing to sue (the have no purchase agreement) and that they have no proof you owe anything to them (they may have an affadavit which will not suffice at trial for evidentiary reasons unless the affiant is there in person). In your MSJ, you state they violated the FDCPA by failing to provide you validation, suing you, and misrepresenting the status of the debt.

There probably isn't a form at the courthouse but they are available online at various sites.