Yesterday, I received a summons and complaint from the Sheriff that was served by a local law firm on behalf of a collection agency. Hereâ??s the thing, this summons was never actually filed with the court, and Iâ??ve verified this with the court clerk. I need advice how to handle this situation. This account is out of the SOL (6 years in my state), as theyâ??ve only furnished me with a statement from 2003 - and the Date of Last Activity (DOAL) on my credit report lists 2002, but I want to get them off my back, and need to build a strong case if they do, for whatever reason, file an actual suit. Iâ??m not going to bore you with all the fine details, but sufficed to say, in 2002, I lost my job of 15+ years and fell behind on bills. Most creditors were willing to work with me, but not this account (for a credit card). Itâ??s gone through four different collection agencies since, and after requesting validation of debt owed from each one - I would never hear from them again. This specific collection agency â??reportedlyâ? bought the debt in 2008, and I first received communication from them through this same law firm in February 2009; a letter that simply stated that they had bought the account. I again sent a certified letter (within 30 days), to both the CA and law firm requesting verification of debt owed. I heard nothing back until this week, when I suddenly received a statement from the law firm, dated 12/03. Yesterday, I was served the summons. Everything about the summons seemed odd - especially since the Sheriff told me that I didnâ??t have to file a response with the court, only to the law firm, and that the summons had no court date or case number on it. I called the court clerk today, and she told me that there is no record of a summons filed for me. If you can help with any (or all), my questions are: 1. Is it illegal to send a summons, without filing it through the court? 2. Can a credit statement alone, with no actual proof that they even own the account, legally satisfy my validation request? If not, are they violating the Fair Debt Collection Act by continuing to collect and report after I sent a request for validation? 3. They stopped reporting on my credit report in September - the last month before 7 years passed - but when they were still reporting, they changed my â??firstâ? date of delinquency to 2008, despite that the DOAL still lists 2002 on my CR. Is this also against the law, since I havenâ??t made any payments since the DOAL, nor had any communication other than requesting validation. 4. Any other advice relevant to this situation.
1.) A summons, by definition, cannot be a summons if it is not filed with the court. 2.) Continued collection activity after a request for validation is against the FDCPA. 3.) They have re-aged your account, which is also illegal. 4.) If I was an attorney, I would be salivating over all of these circumstances. Make them pay DEARLY. They've deserved it.
This is all correct insofar as I know, but some things to check before you march down to the US District Court for your area: 1) Being presented with a payment demand in the form of a summons delivered by the Sheriff could be considered overshadowing. Look into similar cases to be sure. This is a common (and commonly litigated) example and it should be easy to find similar cases. 2) While continued collection without validation is a violation, it sounded to me that the alleged "continued collection" was sent after the validation making that a weak one. 3) I don't see where they re-aged the account. If they did, that would be in violation of the FDCPA, however, double check the dates to make sure you're not just misreading one of the fields. the DOLA and Date of First Delinquency (DOFD) are the ones that should be constant (until you make a payment, of course). The date the account is updated with the CRA, however, can change every month, if the CRA is updating the balance to show accruing interest and fees, for example. However, if the debt is out of SOL (based on the date the DOFD), AND over 7 years old, it should not be on your credit report and if they do waste their time to sue you over it, just be sure to file an affirmative defense of being beyond the SOL. Good luck with resolving your matter, but just be sure to double check your allegations against some existing case law before you get all fired up about filing a lawsuit.
