WhyChat, She is getting that impression from the wording on the summons itself ...all collection efforts, including this lawsuit, will cease until we send you the requested infromation." Is there not a way to dispute the validity of the debt, request validation (contract/agreement and statement of accounting) as well as something establishing the authority of the attorney to collect, as part of the answer? She says they don't know who the original creditor is, who the attorney is representing, don't recognize the names, amounts etc. Only that this same lawfirm has served them before. BumbleBee, What else does the petition say? Does it give you the OC's name, dollar amount? Does it say more than the mini-miranda information? There should be a numerical listing of statements for you to admit or deny. Sassy
The Summons specifically states: "You have been sued by the above-named plaintiff, and you are directed to file a written answer to the attached petition in the court at the above address within thirty-five (35) days after service of this summons upon you exclusive of the day of service. Within the same time, a copy of your Answer must be delivered or mailed to the attorney for the Plaintiff. "No request will be made to the Court for a Judgment until the expiration of 35 days after your receipt of this Petition and Summons. If you dispute the debt and/or request the name and address of the original creditor in writing within the 35-day period that begins with receipt of the Petition and Summons, all collection efforts, including this lawsuit, will cease until we send you the requested information." You will notice that it says "all collection efforts, including this lawsuit, will cease until we send you the requested information." Again, my question is... do they have to wait until we receive it before proceeding? Or can they just stick it in the mail and then proceed with their suit? I've looked at the links on your website and maybe I'm really dense when it comes to this legal stuff, but I honestly can't find anything that is of any help to me in this matter. Yes, I have looked at the "Court Procedure" link. That is the one I'm talking about. It has the Civil Court Rules, but they don't tell me a thing and there is nothing else there to help. Maybe that isn't the case in other states, but it is here. I just did a search on Google, changing a couple of things from the search I did a couple of days ago, and came up with an attorney's office that actually answered more of my questions than the link you provided. Believe me, if we could afford it, we would just go hire an attorney to handle this! I'm hoping that DH's check next Friday is good enough that I can at least consult with one who knows what he/she is talking about. Unfortunately, this is a part of the law that my SIL knows very little about. :-(
Thanks again, Sassy! I got a snack, so it took me a while to compose my post to Why Chat! I stated what it says in the Summons in that post. Here is the actual Petition: "COMES NOW the Plaintiff and for cause of action against this Defendant alleges and states: 1. Unless you, within 30 days after receipt of this notice, dispute the validity of the debt, or any portion thereof, we will assume the debt to be valid. If you notify this law firm, ..., P.C., in writing, within the 30 day period., that the debt, or any portion thereof, is disputed, our law firm, ..., P.C., will obtain verification of the debt and mail a copy of the verification to you. Upon your written request within the 30 day period, our law firm, ..., P.C., will also provide you with the name and address of the original creditor, if different from the current creditor. This is a communication from a debt collector. This communication is an attempt to collect a debt and any information obtained from this communication will be used for that purpose. 2. Plaintiff is duly and legally organized and is authorized to transact business in the State of Oklahoma. 3. Defendant for valuable consideration received, entered into a contract promising to pay the Plaintiff or Plaintiff's assignor. 4. Defendant defaulted on the contract, which has been accelerated by its terms, and after all due and just credits applied and after demand, there remains due, owing and unpaid the principal amount of $1,233.47, plus $87.24, which represents interest from the date of default, with interest accruing at the rate of 20.990% per annum. WHEREFORE, Plaintiff prays for Judgment against the Defendant in the sum of $1,233.57, with interest as set forth above, all court costs and a reasonable attorney's fee of $185.03, and for such other and further relief as to this Court may seem equitable, just and proper." Then it is signed by the attorney and says, "ATTORNEY'S LIEN CLAIMED." I did find a notice when I was sorting through papers the other night from this Colorado Capital Investments and this apparently is my DH's Direct Merchants account, but there is nothing whatsoever in this lawsuit that indicates that. The only way we have any idea that this is Direct Merchants besides the other paper I found, is that someone from this law firm called a couple of months ago and specifically mentioned Direct Merchants at that time. That is also the only cc left that DH hasn't already done something about. He talked to another person at this firm (the one that called is no longer there) and told them when he finished paying off Cap1, he would start on Direct Merchants. They agreed to that, but we don't have it in writing. Finances have been extremely tight for the past couple of months and we missed one payment on Cap1, but DH called them and explained. I'm wondering if that is why they decided to proceed with this lawsuit. Of course, they might have done it anyway. As soon as I can get an answer put together, I will post it here for comment as well as have DH's sister take a look at it. And, if we can swing a consultation with an attorney out of next week's paycheck, I think I will do that, too!
I keep forgetting to ask... Should I send a separate validation letter? Or is it sufficient just to include it in the Answer?
WhyChat, BumbleBee, BumbleBee, Which court did the summons and complaint come from? You've got to find the local procedures for that court. You may have to move quicker than 30-days, BBee, see below. WhyChat, I followed your link, it lists all the district courts in OK, I clicked on each of them. What is bothering me now, is the wording on the summons and complaint. I think the attorney is trying to over cover his butt and that he read the spears v brennan case. That aside, every court in OK that I have clicked on says Bee's answer has to be filed within 20 days!!! Are they playing with the words on exercising her miranda rights? I'm thinking BBee should send a validation seperately and reference having done so in her answer. And get it all done within 20 days from the day DH was served. What day was DH served? Why isn't DH receiving the required information under the validation section, within 5 days of initial communication? Shouldn't that be 5-days from having been served? I'm thinking BBee should be able to answer 1. Defendant has disputed the validity of Plaintiff's claim in its entirety on xx/xx/xx by seperate correspondence; has requested complete validation and the name/address of the original creditor. The notice of dispute was made in writing, CRRR, and pursuant to the requirements of the FDCPA, or something similar. deny 2., as having insufficient knowledge to admit or deny and deny 3., and 4., as having insufficient knowledge absent validation documentation to admit or deny Sassy
BBee, You need to start preparing that the attorney will try to attach your bank accounts and/or garnishment, looks to be 25% of check for OK to me. If you have money in an account I'd get it out straight away. Can or could BBee's DH attempt settlement at this point? I KNOW someone knows these things that could answer. Sassy
Anatomy of a lawsuit in OK, still 20 days! http://home.att.net/~mckimmey/defense.html It reads to me like they have filed but will not proceed for 35 days, allowing you to exercise your mini-miranda rights within 30 days. If you don't, they will proceed assuming the debt is valid. I believe this is over and above the requirements for an attorney, they must have read the Spears v Brennan case and are making sure their bums are absolutely covered. From the Minnesota Institute of Legal Education Seminar: http://www.bassford.com/art_reduce.htm http://www.directdebtcollections.com/state_list.html#OKLAHOMA STATE: OKLAHOMA INTEREST RATE Legal: 6% Judgment: 4% over U.S. Treasury Bill Rate of previous year. (1996 = 9.55% 1997 = 9.15%) STATUTE OF LIMITATIONS (IN YEARS) Open Acct.: 3 Written Contract: 5 Domestic Judgment: 5 renewable Foreign Judgment: 3 BAD CHECK LAWS (CIVIL PENALTY) N/A GENERAL GARNISHMENT EXEMPTIONS State law: 75% of earnings exempted, more if hardship established. All federal exemptions apply. COLLECTION AGENCY BOND & LICENSE Bond: No License: No Fee: No The above part on garnishment = 25% of DH's check in OK if the attorney gets the judgment and proceeds this direction. Need to check the federal exemptions allowed. Have you checked the SOL, when was the last time DH made a payment? Reads to me like the Attorney has been assigned the debt by the OC.
OK... one question at a time! LOL I take a break to sort through some papers and come back to find lots of questions! The Summons & Petition came from the District Court of Oklahoma County. DH was served on 9/30. That gives me a week according to what you are saying. I, too, have noticed that about filing the answer within 20 days. Everything I have read says I have to follow the instructions on the Summons, which tells me we have 35 days, but I think you may be right. These attorneys specialize in debt collection... I'm quite sure they know how to cover themselves. I will double-check with a lawyer on Monday! I'm sure they can at least tell me that much over the phone. What's the required information? I know I have read something about 5 days, but this all starts to run together after a while. Thanks for the help on the answer, Sassy. I'll work on that. Now, on to the next post.
Can they attach an account that is out of state? Unfortunately, we didn't know that we shouldn't send them a personal check, so we have been sending checks on the Cap1 account... they have his bank account info, but his account is in Missouri. His paycheck is direct deposit. I don't know how long it would take to change it. That account is also a joint account. I can protest if they try to attach it, can't I? I don't know what we could do about garnishment. DH told them before that he could lose his job if they tried that. Now, they do know that we can make payments. Hopefully, they will work with us again and allow us to do that on this account. It's just that we are getting too many of these big payments... that's why he told them on the phone that he would start paying this one when Cap1 is paid off. It just makes me mad that they pulled this after agreeing to that. Unfortunately, we don't have it in writing. :-( I think in light of the Cap1 deal, he could possibly attempt settlement. That's one reason I was hoping for a little more time. With the holiday buying season coming on soon, his sales are going to go up. In fact, we are already starting to see an increase. In another month or two, we can probably give them a lump sum settlement. If we are in settlement negotiations, what happens with the lawsuit? Anybody know?
The link you posted to the McKimmey Law Office in Shawnee is the one I found earlier. They're too far away from us, although it would be a local call. However, there is a NACA attorney here in the city, so that is the one I will try calling on Monday. Some good info on the McKimmey website, though. I need to read through the other links you posted. SOL in OK is 3 years as you posted above. He thinks the account was opened while we were in Missouri. If that matters, the SOL in MO is worse... 5 years. It has been about 2 years since he last made payment, so either way, the SOL is of no help. The attorney was NOT assigned the debt by the OC. If this is indeed Direct Merchants, it went to a CA called Colorado Capital Investments, Inc. and they are the Plaintiff in the case. In the one letter I have found from them, they claim to have purchased his DM account. The account balance they show is slightly different from the balance shown in the Petition. Heading over to read those links you posted!
BumbleBee, I printed out all the stuff from nwjustice, this thread, relevant OK statutes, local court rules, rules of civil procedure -- we had coffee together this morning ;-) . This is what I would do and why. I do wish other c-netters with judgment experience would chime in, PLEASE, I know you are out there reading along. It appears to me that once you are served with a summons and complaint, per the court rules and federal rules of civil procedure, that you have 20 days to file a notice of appearance and/or an answer. Your paperwork, by what you have posted doesn't appear to mention that -- very deceptive I say! They don't want you to respond within the 20 days. What they aren't saying, by my reading, is that on the 21st day (though they say they will wait until the 35th day), if you have not responded, they can petition the court for a default judgment. Filing a Notice of Appearance within the 20 days from service will prevent a default judgment from being granted against you. It says to the Judge, here I am, provide me a copy of all further paperwork at this address. You don't have to file anything at all if you don't disagree with the complaint and are willing to accept a default judgment against you. I'm guessing that this lawfirm that served DH must specialize or do primarily collection/judgment work as he/she requests an attorney's lien -- that's how they get paid. It takes the debt off the books, in your case from the CA (Colorado Capital Investments) that purchased it, so they say, from the OC (Direct Merchants) and gives the attorney a workload in pursuing judgment. That's a lot of years in expensive lawschool for being a high paid bill collector, says me! However, the FDCPA, because this is a high paid debt collector pursuing you -- and that's all they are! throws in the mandated mini-miranda wording, which by the federal regulations allows you 30-days to dispute the validity of the debt and request the name/address of the OC in writing, if different (it is different, the OC, if you are correct in your assumptions would be Direct Merchants). Additionally, an Answer, Affirmative Defenses, and Counterclaims, should be filed with the court. This in essence answers the charges being made against you in the complaint and tells the Judge your side of the story, your defenses, if any, as well as any counterclaims against the plaintiff, if any. You want to file an Answer, firstly, because you've not had an opportunity to exercise your mini-miranda rights. The timeframes run on seperate tracks though the summons and complaint doesn't make that clear. Answering takes care of the court timeframes; exercising your validation rights requires the plaintiff to prove that you (and now to the Judge): 1. To prove that you (and now to the Judge) Established the debt (contract/agreement), the terms of the debt, agreed to the terms and agreed to be responsible for paying the debt. What's important here is that your DH had a contract/agreement with Direct Merchant's Bank -- they need to provide you a copy of that, signed and dated. The terms need to state that you agreed to any assignment, selling and/or transfer of the debt. Otherwise, you would still owe Direct Merchants and not Colorado Capital or this attorney. The terms need to address that you agreed to be responsible for attorney's fees and whatever other fees/charges they've decided to tack on to end up at the total amount due this complaint is alleging you owe. They need to prove that you are the right person, that you established the debt, that you agreed to the terms, that the contract was legally binding, and that you agreed to the assignment and then... 2. To prove that you (and now to the Judge) Owe and are responsible for the amount they have listed in the complaint, every last penny. They need to provide an itemized statement of accounting (again from the OC -- the original source) that accounts for every last penny they are saying you owe and what that is for. How much is interest, how was it calculated (from the terms of the contract), how much is attorney's fees, how much did you already pay and was it paid according to the terms, what did you get with the loan they provided you, were any of those goods returned or defective, were any of them not credited, etc. Usually when debts are purchased, the buyer isn't getting the required for proof records of the OC, they are only getting a computerized listing of information, that may or may not be accurate. That's the point of validation. DH must stand before the Judge and say, your honor, I don't know. I don't know if this debt is or isn't mine, it could be but I can't say for sure. My wife and I have had financially difficulties and we've moved in with my parents to address them. We've moved and our records are scattered and what records we have don't mention this plaintiff, this attorney, any dollar amount that is familiar to me. I want to pay my debts but I also want to know that I am paying the right company and paying the correct amount. Validation allows you to get proof of the debt, it has to be provided by the OC and re-distributed to you through the CA. The whole point is for those who have been either misidentified by the debt collector as the wrong person and/or the debt collector having bogus or inaccurate records showing that you owe something, in whole or in part, that you don't. Whatever DH admits to, DH will be responsible for. DH should admit nothing without proof, absolute proof from the OC. It is his right as a consumer to request it, the FDCPA provides that it MUST be provided -- no excuses, accept nothing less. Link for pleading paper, pdf: http://www.azd.uscourts.gov/azd/cou...448005e75b0/892b298e2b2e07c607256b6b007b672e/$FILE/pleadingpaper.pdf If you take the samples from the nwjustice site, How to answer a lawsuit for debt collection: http://www.nwjustice.org/docs/205.html And tweak them with the requirements of your local court: http://www.oklahomacounty.org/departments/lawlibrary/2000rules1.htm#RULE NO. 1 Most everything the washington examples provide is available in your state as well, you just have to find it, if you even need to. Mostly WhyChat was giving you the links for the courts so you could find out if they have special requirements for filing with the court -- appears to me (from the local court link) you need to include names and addresses on the final page. Use the samples, copy the caption information from the complaint and summons, follow the format, fill in the blanks, include the name/address info on the last page, run it by SIL attorney, get it filed and served, file proof of service -- PRAY! File them with the court and have them served on the plaintiff according to the rules of the local court, as WhyChat said, they are pretty standardized, you should at least have yourself in a position of not getting a default judgment, getting proof of the debt and the amount, and the ability to work out a settlement. Consult with a local attorney if you can (a consult can be free) but don't let it stop you from meeting the deadlines. Ask the clerks as well, they can help you with the procedural stuff, they just can't give legal advice. You aren't held to the same standard as an attorney in a court room. The court should give you every opportunity and benefit of the doubt in seeking justice and having your day in court. Make sure you've served properly and documented as required, done! Sassy Be prepared for this -- What to do if you are sued, protect property, petition for installment payments http://www.korrnet.org/klas/debt.htm These may help, if you want or need more details, don't get lost in the minutia though: Western District of Oklahoma If you click on the attorney's manual (it tells ya all the good filing details): http://www.okwd.uscourts.gov/files/attmanual.pdf Rules of Civil Procedure: http://www.law.cornell.edu/rules/frcp/overview.htm
Here's a link on the problem debt buyers have as debt collectors: http://www.aimoo.com/forum/postview.cfm?id=332192&CategoryID=24710&startcat=1&ThreadID=182763
You should also check the status of Colorado Capitol Investments,if they are located in Colorado they are required to be bonded and licensed as a collection agency. If they are not a legally licensed collection agency they may have no "standing" to file against you.
wooooo hooooooo, WhyChat, I couldn't find a thing on them last night. It didn't occur to me to check colorado, I was searching oklahoma. Oklahoma doesn't require licensing. However, there's nothing listing for Colorado Capital or anything close in Colorado either, nor a listing with the bbb. Here's the link to search and with contact info, BBee: http://www.ago.state.co.us/cab.htm licensing requirements: http://www.lawdog.com/states/co/st1c.htm Sassy EDIT: WhyChat, what would that be a defense or a counterclaim? or both? If they aren't licensed to collect, they would be attempting to collect in violation of the FDCPA, yes?
LOL Well, I see I have been assigned a TON of homework! Sassy, you are incredible!!! I'm printing a lot of this stuff out including your instructions. I think I may be pulling an all-nighter or two in the next few days. This will all have to be done by Friday because the 20th day falls on Sunday! Think they planned that one, too??? Just did a search on Google to see what the net might turn up on them and just got myself a bunch more homework!
Sassy & Why Chat, You didn't find them in Colorado because they are located in Texas!!! I thought Colorado, too, until I found that letter. BTW, that legal firm isn't even following their own procedures! I didn't find as much on them as I thought, but I did find their website. (Check your e-mail, Sassy.) They work strictly for the creditor, including defending them against lawsuits and in bankruptcies. They have a large staff which includes collectors. This came from the page that lists their services: Collections Collections Procedure: 1. A new file is added to our system. 2. The initial demand letter is mailed out the same day. 3. The collector receives a follow up code on their work list to make the initial call within 2 days of the demand letter. 4. Suit is then filed (when applicable) and the debtor is served with a Summons and Petition. We are required by law to give the debtor 35 days in which to file an answer to the suit. 5. On the 31 day, and if no Answer was filed with the Court, the file is reviewed for a Default Judgment. 6. Once Default Judgment is filed, the assigned collector will contact and give the debtor the opportunity to settle the account or make payment arrangements. 7. If no payment arrangement can be made, the file will then be reviewed for its garnishable possibilities. DH never received a letter from them... this time or in the Cap1 case. He DID get a phone call this time (which I took because he was at work), but he never received anything in writing stating the mini-miranda until he was served. Just thought I'd throw that little tidbit into the mix.
If this is the address of the CA that has filed suit,then in your answer, along with requesting proof of their acquisiton of the account, request proof of their BOND as a Texas collection agency. COLORADO CAPITAL INVESTMENTS INC 305 NE LOOP 820 STE 404 HURST, TX 76053-7214 Status IN GOOD STANDING THROUGH MAY 15, 2003 Registered Agent MICHAEL STALLINGS 305 N.E. LOOP 820, STE. 404 HURST, TX 76053 State of Incorporation TXFile Number0130267100 Charter/COA DateFebruary 23, 1994 Charter/COA Type CHARTER Taxpayer Number17525267856
Gotta LOVE this! http://www.fortworth.bbb.org/commonreport.html?compid=95010031 Better Business Bureau at Fort Worth 101 Summit Ave., Suite 707 Fort Worth, TX 76102 BBB Reliability Report COLORADO CAPITAL 305 N E LOOP 820 STE 604 HURST, TX 76053 (800) 828-5409 Local Business Start Date: January 1, 1993 Principal: MICHAEL STALLINGS Customer Service Contact: MICHAEL STALLINGS Phone Number: (800) 828-5409 Type-of-Business Classification(s): COLLECTION AGENCIES File Open Date: January 1, 1995 The information in this report has either been provided by the company, or has been compiled by the Bureau from other sources. Customer Experience According to information supplied by the company, it was established in Jan. 1993. The BBB file opened in September 1995. Michael Stallings is the president. The firm offer collection services. Complaints brought to the firms attention concern collection practices and age of the alleged debt. The company has responded to complaints with explanations of future actions or future dates when the dispute may be settled. However, the complainant has not always been satisfied with the company's response. In June 1997, the company consented to enter into a final judgment and permanent injunction with the Texas attorney general. Without admitting to any violations of the Texas Deceptive Trade Practices-Consumer Protection Act, the company agreed that in the future, they would not use language intended to harass a consumer, misrepresent the means available to collect a debt. misrepresent the validity or the amount of an alleged debt, and other practices. The firm also agreed to pay to the State of Texas $10,000.00 for attorney's fees and investigative costs. BBB advisory: under the Federal Trade Commission's Fair Debt Collection Practices Act, collection agencies may not use any false, deceptive, or misleading representations or means to collect debts. They may not harass, oppress, or abuse any person while attempting to collect a debt. A debtor may be contacted between 8 A.M. and 9 P.M. only and can be contacted at work unless instructed not to. Collectors may not tell others about the debtor's personal finances. Additional Information Additional Phone Numbers: 817-595-4095 Educational/General Comments Under the Federal Trade Commission's Fair Debt Collection Practices Act, collection agencies may not use any false, deceptive, or misleading representations or means to collect debts. They may not harass, oppress, or abuse any person while attempting to collect a debt. Collectors may not tell others about the debtor's personal finances. You may stop collection agencies from contacting you by writing a letter to the collection agencies telling them to stop. Once an agency receives your letter, they may not contact you again except to say there will be no further contact or to notify you that some specific action will be taken if the debt collector or the creditor intends to take such action. Report as of 10/13/2002 Copyright 2002 Better Business Bureau at Fort Worth As a matter of policy, the Better Business Bureau does not endorse any product, service or company. BBB reports generally cover a three-year reporting period, and are provided solely to assist you in exercising your own best judgment. Information contained herein is believed reliable but not guaranteed as to accuracy. Reports are subject to change at any time. The Better Business Bureau reports on members and non-members. Membership in the BBB is voluntary, and members must meet and maintain BBB standards. If a company is a member of the BBB, it is stated in this report.
It would be a good idea to attach a copy of the BBB report to your answer,along with (as I remember) your other affirmative defenses of SOL and non-responsiveness to request for validation. You may also wish to consider filng a countersuit for violations of the FDCPA. In any case, countersuit or not, they have certainly been caught with "dirty hands" which is the term that is used when a plaintiff is a crook.
The SOL where you took out the card is not important, only the SOL where the suit is filed. You say it has been 2 years since made a payment, that is not neccessarily the start of SOL, the start of SOL for Ok.is what they call"cause of action". That means the FIRST month there was a late charge or past due statement from the ORIGINAL CREDITOR. Any collection agency payments DO NOT COUNT.
