Okay, have been sued by Asset, old credit card account. They filed in December of 2003, and I provided answer requesting validation at that time. Was then served with Plaintiff's request for production of documents, which I responded by reiterating my answer, that they had not provided sufficient documentation to validate the claim. Fast forward, the court misplaced the file, and it is only now being put on the calendar. Also, this is state court, not magistrate, I spoke to an attorney who said that in state court, you have to have your ducks in a row, where as magistrate is much more lenient. The judge will not help you and you have to provide everything in correct form. I have never had a phone call from the plaintiff attorney, until today, five days before court, stating that "we have some copies of statements and thought you might be interested...) Assuming they had these copies for the past year and a half, why were they not sent to me before now? Are they wanting me to call and try to settle? They faxed the statements to me, and they appear legit, however, I have also read that since they are a purchasing CA, they cannot depend on anything but a full and complete accounting of the claim, with affidavit from the owner of the business records, in this case the original credit card company, to validate this. Also, is this validation in the eyes of the court? Don't they have to have an original signed contract? One could argue that statements were returned to sender as no account existed.... I know this is long, but I am wondering, at which point should we try to settle? I think that since they called me five days prior to the court case, they are not wanting to have to follow through, it is only for around $2000, and his percentage will not really be worth his time if we show up and fight it. I should also add, that I have done all the legwork and research for this, and the account is actually in my husband's name, so he will be required to speak for himself next week, which is a truly scary thought. Should we call their bluff? Any help is appreciated.
the statements that they sent - do they include each and everyone? do they show each payment made and how they arrived at the amount they are suing for (less court costs)? They obviously don't have a signed contract. I personally have fun in court.
They sent two statements, from 2001, only two, no signed contract, just a copy of a statement like you would receive in the mail, I thjnk because it was my husband's name and address, that is what they are considering is "proof". What worries me is not going to court, but the fact that I am unable to do anything. I have done all the research, and my husband doesn't understand all this kind of thing, so he is basically going to be "winging it", whereas, I have been researching creditnet for two years or more, plus other things on the web, and feel like if he messes up in court, state court, nonetheless, we'll be screwed. I guess my question is how far to push the attorney prior to court. I spoke with an attorney the other day and he said he would be surprised if the plaintiff attorney showed up at all. I tend to think they are trying to get out of it, as they are just now calling us after almost two years, to scare us into settling. What I am not sure about is the judge. From what I understand, he is not very lenient as far as self-representation. He will only allow my husband to talk, since he is the one being sued. I guess I could request a jury trial and delay if I had to. The attorney I spoke with said to just show up, and if asked state that we are ready to proceed and call their bluff. If anyone has any courtroom advice, I would love to hear it. thanks so much.
Me too! Am in same boat with Asset. Never received anything from them prior to the legal papers telling me a judgement was being sought against me re cc bank. Sent off immediately for validation and have all the necessary proof, receipts, etc. Never heard a word from them. Covered my butt at the same time by filing a notice of appearance and my counterclaim and defenses. Never got anything at all from them in re validation. Never heard from them again in fact. Just got a calendar call for status. Called the Judge's clerk and she told me they Asset has not filed anything else, but that the case has been sitting there for 2 years and the judge wants all this old stuff cleared up. I go July 2. Read the post by Stacey which Ih8debt bumped up for me. The title has court referred in it, can't remember the exact caption. That pos is all I have to go on. I figure they never validated and I have proof of same, I'm just going in there and if the atty does in fact show up, and tries to settle or make a deal with me, I'm just going to call his bluff and tell him no, it's not mine, you've shown me nothing, I am ready to go before the judge. Hope I won't be cutting off my nose to spite my face, butI think that's the way to go. If they call me prior to court, I'll do the same. Worse happens - I have to pay. They want $3300 and I'll have to get a cash advance and wipe out my entire Discover card doing so, which I hope does not happen. Taking my chances unless someone comes on board here and tells me otherwise. Don't mean to sound brave, I'm not - actually am scared poopy!! Please post as to how you made out and - I'll be plugging for you. Linda
There's a lot going on here. Once we get to a point where we cannot argue the account legitimacy, turn your argument to the amount. Ok, so [appearently] we owe something, but it dam sure ain't no $2,000. This opens the door for a counter for misrepresenting the amount or legal status. They've failed quite nicely at legitimizing the amount, by not providing an exact accounting. Ok so if you owe them 1000, and they owe you 1000 for attempting to collect an amount beyond what is owed, is that a break even? Further, Cagney your question as to why they haven't produced this before now, that they sat on it instead, that they allowed the courts resources to be used when in fact it wasn't necessary, (all they had to do was send you what you asked for in the first place) and that here we are now your honor wasting YOUR valuable time, when it wasn't at all necessary, ARE ALL QUESTIONS YOU SHOULD BE PREPARED TO ASK IN COURT, if they even bother to appear. Turn the tables Cagney. I don't know enough to get specific about your case but these are some issues you should be looking at. Sanctions are available against atty's who "unnecessarily waste a courts time". "
Perhaps the following might apply: Substantial Justification for this delay must be demonstrated. Otherwise there may result a Sanction for abuse of process. They've used "TIME", and pressure of a lawsuit, as a tool to coerse Cagney into paying the bill. ... Look up: "Substantial Justification" "Abuse of Process" ...
Thanks a lot, Butch - that has helped me too! At least it gives me a few more things to say or bring up if necessary. Mine is quite similar in that they changed about $940 into over $3,000 without nary a paper or anything showing me that it was my account, nor how they even arrived at that figure. Nada - nothing. No response to validation whatsoever, no prior letter or calls before the petition for judgment. Again, thank you for your input. Linda
Which brings up my next point. It is probably unwise to insist, once in a court room, that an account is "not mine", when it clearly is. So the focus of your argument must change. If a debt is 940, and they're attempting to collect 3000, EXACTLY how they justify this charge IS required. They will say, interest is allowed; YOU: Who says THEM: The contract YOU: What contract THEM: The one you signed YOU: SHOW ME! I DON'T BELIEVE YOU Now doesn't this bring us back around to the original contract? Look at it this way; I developed a trick for the next atty., (or judge) that demands I answer their question "YES" or "NO", when in fact the answer is more complicated. (They do this alot btw). Judge: Just answer the question yes or no Mr. Butch ME: "WELL YOUR HONOR THE ANSWER IS "YES" AND "NO". Judge: Well you'll need to explain that answer ME: DUH - no kiddin. (That's what I was trying to do in the first place). Just outsmart these jokers. That's not that hard. : )
First, let me come clean about something. Cagney34 and stacey are both me. Stacey happens to be my first name, and I started putting such case-identifiable info out there, that if per chance, these slimeballs were catching any of this, they would know it was me. Anyway, I am typing so fast I can't read what I am doing, you all are going to read this and think I am ADHD. Let me fast forward, or rewind to this past Wednesday and summarize. I get a call from the attny that she has "copies of statements" I call her and have her fax them to me. I receive by fax a June, 2001 and July, 2001 Providian statement. I returned her call and told her that I had yet to see a signed contract or anything linking my husband to that account, to which she replied******"By federal law, we are only required to keep contracts for four years." I responded that is all fine and well until you sue someone and have to prove they owe you money. She stated she faxed the copies of statements to "jog our memory of the account". I responded to her that we had filed a dispute with Providian, that we never received anything from Asset, further our credit report states that Asset was "unable to locate the consumer", and that attached to my answer to the court was a copy of the dispute letter sent to her law office disputing the claim one week after receiving our first letter from them regarding this claim. After a few quiet moments, (during which I think she located the dispute letter we had sent and realized that instead of validating the claim as they should have by law, that they in turn responded by filing suit against us, and started to see a countersuit in the wings) , she stated that "We are just going to have to go over all this in Court on Tuesday, for non-jury trial, in front of the judge, you have a copy of the calendar......" I responded yes and end of conversation. Fast forward three hours, I return home to a message stating (drum roll please......) Mrs. ..... I have spoken with the other company and we are dismissing your case. I will contact the court, and provide the information. You do not need to come to court on Tuesday, we are dismissing the case against you." At that moment, I truly felt like I heard angels singing. If this proves anything, anything at all, it is that researching and knowing your rights pays off. I feel there is no excuse for not answering a complaint and following through until there are no more avenues to pursue. Had this been a few years ago, prior to my finding this website and becoming somewhat educated about these things, and I have a lot to learn, we would have not shown up and probably been garnished or worse. But just knowing where to go for help made all the difference. It is as much or more common sense than it is knowing the actual law. Common sense tells you that any plaintiff has the burden of proof, and that proof can't be ill-gotten or pulled from the sky. There is a difference between trying to get out of something and knowing your rights, and dealing with an original creditor is something entirely different. But in dealing with a collection agency such as Asset, or their slimeball atorneys, a little bit of research and work will give you the upper hand. They are looking for an easy mark and thinking that they can intimidate you. If you know what you are talking about, they will back off. I don't mean to gloat at all, this has been a very humbling experience for me. I am so relieved to not have to go in front of a judge in a courtroom, but was prepared to, I was terrified to think of having to educate my husband over the weekend in all he would have to be responsible for, all that I have learned over the past two years on this board. But Asset knew that we were going to show up and contest this, and I think that was worth more than any information I had. They knew we would not just back down and so when they knew that they couldn't prove their case, they backed off. Anyway, I feel like I could write a book about Asset Acceptance. It would probably be a best seller. I know this is a long post, but I could not have done this without reading about others' experiences. Thanks so much, I am going to go take on the world.... rather the ten loads of laundry and sinkfull of dishes that has piled up the past two days while I was dealing with all that's happened. By the way, I love it that someone actually referred to one of my previous posts. It is exciting that I haven't blabbed on to hear my fingers type.
I am assuming that once I receive a copy of the dismissal, which I will of course verify with the court Monday morning to be sure that I am not being conned into not showing up Tuesday and them showing up and getting default judgement against us, that I can forward a copy of the dismissal to the credit reporting agencies and have all negatives removed in regards to this account? Should I follow-through in any other way? Thanks, Cagney34 aka Stacey
woohoo! way to go stacey! <<btw, the law isn't 4 years to retain files - it's five, but i am glad you don't have to call them on it>>
I presume this is not a dismissal with prejudice, so they could refile later, or sell to another party. Keep your records.
Do I have any input into the type of dismissal? Can it be amended after filed? Of course, I will hold onto everything for the next 80 years. Thanks for the input.
I think they would have to agree to it, and they would probably only do that if you had countersued, in exchange for your agreement to drop your suit. I have no direct experience, however. They might still try to keep their negative tradeline on your report, even though they dropped their suit, either dragging their feet in removing it, or marking it in dispute. The ball would then be in your court on whether you felt your case strong enough to sue back. When is the date of first delinquency, and when is SOL from that date? Did the statements they provided document these dates?
Good Going Stacey - I only pray I'll be as fortunate. I'll probably get the only "Gloria Alred" that Asset has!!!
