If you decide to make a settlement, in writing, be aware of the following. 1; A new written agreement with a payment will re-start your SOL for being sued for any balance. 2; A new written agreement with a payment will result in the balance being sold to anoter CA, who may then legally report it for 7 years from the date of your agreement. 3; Any agreement or settlement with a collection agency who has been fined for fraudulent practices, who represents a creditor who has been successfully sued for fraudulent practices is, in my opinion, aiding and abetting in the continuation of illegal and fraudulent crimes against other consumers.
Good point, WhyChat! Not to be forgotten -- you don't know anything until they validate, BBee, anything you admit to you will be paying for literally. I'm betting they won't be able to validate, debt buyers seldom can and they are too cheap to pay the OC for the records. Besides, the whole action may spawn other action if they can't cough up proof of a bond having been posted -- they've dirty hands already, be sure your yipper attorney sees their records. IF they validate completely and aren't beyond the SOL, it really reads like they are beyond it; if they are legally able to collect, via the terms of an original contract and meeting the licensing requirements (there's so many if's -- no way can they crawl back out of all of them) If, and that's a big if, you do get to the point of considering settlement negotiations, be sure it's in writing and that the wording says it won't be reported or will be deleted as a condition and that the difference won't be sold to yet another bottom feeder! Sassy
Thanks, Sassy! And I didn't delete your e-mail. Took me a minute to figure out what was going on! LOL
Thanks for the heads up, you two! I will definitely keep all that in mind. I'm really, really hoping they can't validate. That should make my life a whole lot easier. 'Twill be interesting to see what happens!
Hmmm... guess I did't post here after having lunch with DH and SIL unless there was another disappearing post! LOL Talked to SIL a little bit about the situation and asked her about the time frame for Answer, just to be on the safe side. She said whatever it says on the Summons, so I do have 35 days on that. Also got the proper procedure for filing the Answer, although she wasn't sure how many copies I need! Oh, well, I'll just make sure I have plenty. LOL She looked over the Answer but didn't make any comment on it except to ask what the 2 sections were from the FDCPA. She questioned me a little about the guy that I thought was an attorney... did he say he was, etc, but didn't get into it much when I read the section from the copy of the FDCPA I had with me. So, that's where it stands. I do think I need to add a statement at the end about the damages I expect on those two violations, don't you? I sure wish someone would give me some feedback on this! Thanks for the <bump>, Why Chat!
BumbleBee, I'm hearing you and those you ran this by on the 30 days to validate versus the 20 days of civil procedure. However, where in your summons or complaint does it state you need to respond to the court at all? I'm not seeing it -- this is part of the reason we were asking if it was a REAL summons. The CA says you can dispute and request validation within 30 days; they won't request judgment from the court for 35 days -- that is the FDCPA -- they offer you no other options. Once filed, you answer and respond to the Court and their timeframes -- the CA doesn't get to decide. They don't tell you to Answer to the complaint at all, like it's not even an option, only that you can dispute and request validation if you choose to and those timeframes -- this remains my concern. What do you think WhyChat, BBee, Anyone? Why isn't the court process and timeframes listed on the summons with the mini-miranda? They weren't required to put the mini-miranda on the court documents, well the FTC says they don't hold that opinion anyway. If they hadn't included it, they would have had to list the timeframes for responding per the court process -- I think they are trying to sidestep the court process still. BBee, the clerk wouldn't tell you the required timeframes for responding to the COURT itself? Sassy SUMMONS: 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." 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."
Wait, here it is, from the summons: "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. Sassy
I still think you should claim a SOL defense ALSO--after all you really do not know when your husband was first late on the original account. And if THEY can produce no records of the original account, it is their word against yours!! What does his Experian report say is the "come-off-date"?
Glad you finally saw that, Sassy! LOL I started searching back through the posts before I got to the end of yours to see if I had even posted that!
I guess I'm missing something here. SOL has another year to go so how can we claim that? We DO know when he was first late, at least within a month or two. The church got behind on our salary in November or December of 2000 and that's when he quit paying on it. Experian shows 30 days as of 1-2001, so it would have been the 12/00 payment that he first missed. And I just noticed something on this... he had only had the card since October! :-( Interesting... Experian doesn't list a "come-off date" on this one. Just says, "Purchased by another lender." Another lender??? They aren't a lender! They're a collection agency!!! We sent validation today... CRRR. I'll be very suprised if Colorado Capital can actually validate. We'll go ahead and file the Answer with the court probably early next week, but I think validation may very well put an end to this since they can't continue with the lawsuit until they validate. We'll see!
The point of claiming SOL as a defense does not relate to when your husband last paid on the account, but when the "contract" was breached by the creditor.I know, in 99% of the SOL defenses it has to do with when the DEBTOR breached the contract by not paying, however, legally it can also be claimed in this case by stating that the CREDITOR was in breach a year or more prior as the WHOLE contract was essentially voided by the CREDITOR'S fraudulent acts. There is in every State's statute of frauds a prohibition against enforcement of a fraudulent contract.
OK, let me see if I've got this straight... 1. Direct Merchants pulls their shenanigans over a period of several years, which gets them a class action lawsuit. 2. Sometime during that time, DH receives one of their pre-appoved offers in the mail and decides to take advantage of it. 3. DH doesn't get a paycheck, so defaults on the CC just two months after opening the account. 4. Less than 2 years after the default, DH gets sued, but because of #1, the contract was breached by Direct Merchants prior to DH's receiving their CC which makes it beyond the SOL. This is all so mind-boggling, but I think I'm beginning to understand just a little. Is this the reason that I need to attach the items about the lawsuits to the Answer? I guess I'm also wondering if that is proper procedure. Thanks for the help, Why Chat.
I guess I put my fingers in gear before my brain was fully engaged. It is not the Statute of Limitations as a defense which you can claim but a SOL for action against THEM. In effect, the contract is unenforceable, not because of the time that has elapsed, but because the contract was not enforceable at all as it was based on fraud. The SOL that is involved here has nothing to do with your husbands being sued within the SOL, but for HIM taking action against the creditor for THEIR fraud, which is WITHIN 3 years from their committing the fraud, which is when he opened the account.
Hmmm... ok. I thought SOL seemed a little strange as a defense when we were talking about fraud, but I'm still trying to get all this sorted out. Sure wish I had had a little more time to learn some things before getting hit with that lawsuit! So, do I need to change some things in the Answer? Add something to it? Would the unenforceability of the contract be a counterclaim? I just hope they aren't able to validate. Unfortunately, though, we still have to file an answer while we wait.
Good grief!!! I was just looking at DH's EX CR. There is a Portfolio Recovery & Affil that says the OC was Metris Companies!!! Now what? It shows on his TU report as well, which he finally managed to get online tonight. (His FAKO score was a whopping 548!) Both CR's show the last and only date reported was 9/2001.
Yes, I realized it's the same OC, but the CA is different. That's why I posted about it. Got the green card back, btw. Is the stamp that's on it the date of delivery? There is nothing written in the Date of Delivery box.
Give me a break! I just did a search on Portfolio Recovery and came up with a website: http://www.portfoliorecovery.com Not sure if this is the same one I mentioned above or not, but they are a CA. From their home page: [size=large]Portfolio Recovery Associates, LLC[/size] We're giving debt collection a good name. Portfolio Recovery Associates and its wholly owned subsidiaries (PRA) are singularly focused on the purchase and management of delinquent consumer debt. Whether you are a customer whose account is owned or managed by us or a client who has sold or placed accounts with us, you can depend on being treated fairly and professionally by dedicated, well trained and responsive people. By creating mutually satisfactory solutions to the complicated needs of our customers and clients, Portfolio Recovery Associates is committed to the goal of ".. . giving debt collection a good name." Just thought I'd post that for grins and giggles. On a more serious note... doesn't it improve our chances that Colorado Capital will not be able to validate since it went through another CA first? Also, should we be checking now to see if this is marked in dispute on DH's CR's? Does that mean we need to sign up for credit monitoring? Or is there another way to do it for free?
