Re: Re: Re: served complaint today - question! I do remember talking to customer service rep when they initially called to collect, and I said "this phone was lost, please cancel this account." At that time, I did not want my son to have a cell phone anymore, so cancelling was fine with me. Now... what if they did not put in their records that the phone was lost? They definitely never sent me an affidavit. Maybe it's my fault for not taking follow-up action. Does a simple telephone conversation (with no records to show as proof) where I said "the phone was lost, please cancel this account" = notification? It's a he-said, he-said scenario in either case. It's my fault for ignoring follow-up billing notices, but I honestly at the time thought I did not have to pay them. Naive, yes, but how does this affect my answer to the complaint?
Re: Re: Re: served complaint today - question! I am really not a FDCPA expert here, my experiance has been mostly with civil rules and procedure. Also most of my debt was older, the CA's I was dealing with were idiots and extremely abusive. The first few times I lost when I got sued (even when alleging FDCPA violations). I learned alot about civ pro and starting beating the lawyers at their own games. Most CA's offer a standard 5 hours in legal fees in their contracts. This covers an attorney filing, serving and showing up at a small claims trial. 75% of these the defendants never show so the CA gets a default. I just started moving for formal rules and filing motions and ringing up the other sides fees, when the CA goes back to their client and tells them they need another five hundred dollars that they may or may not get back on a $800 debt the client usually tells them to suck eggs and the suit is dismissed. If you want to settle this just answer the complaint and make the other side think you are going to aggressively defend it. Let them sit on it for a few days and they will settle for something reasonable. Most CA's understand business, if they can collect $500.00 for $125.00 worth of effort they will due it. If they think it will cost them 2-3k to recoup $1200.00 they will see the futility and settle.
Re: Re: Re: served complaint today - question! Unless you told them to cancel in writing you have no proof. Small claims works differently than other courts. A judge will quickly look at the evidence presented without any discovery. He will see your contract, the amount owed. You have no written record to show your side, only your word. The other side has documentation, they most likely will win. If it was me I would never want this to make it to trial, the reason people who post here are winning against CA's is because they have irrefutable documentation, they have hard evidence of violations that shows a repeated history of a CA screwing with their rights.
Re: Re: Re: Re: served complaint today - question! The one thing I may have is that I was never given any collection notice whatsoever other than being served a complaint. This means they are potentially bypassing my debtor rights to demand validation, unless they (according to this FTC opinion http://www.ftc.gov/os/2000/04/fdcpaadvisoryopinion.htm): 1. Includes validation information of debt in the initial complaint (he did not). 2. Sends me by mail validation of debt within 5 days of being served complaint (3 days to go!) All of this without me having to explictly ask for validation. The question if what if he insists that he sent debt collection notices by mail? I definitely did not receive anything and did not sign for anything either, so he has no proof. It would be his word against mine. If he has no proof (just like I have no proof that I cancelled and reported phone missing other than my word that I talked to customer service), then in both cases would the judge not assume that neither item occured (i.e. he did not sent notices prior to filing lawsuit; I did not notify OC of stolen phone). Also, there is also the question of what happens if I demand validation during the lawsuit. It is possible that he may get a judgement, but I could get it reversed if the judgement occurs *before* validation is received. I'm doing more research on the above mentioned FTC opinion letter b/c I think it is the strongest defense I have now... if not to win the case then to leverage for settlement. I only hope he doesn't read CN!
Re: Re: Re: Re: Re: served complaint today - question! If I remember correctly, 1. does not have to happen. If the collector does not follow 1. then he has to do 2. Heintz v Jenkins is the case law that you want to read up on. Case law is always better than staff opinion letters. Heintz v. Jenkins, 514 U.S. 291, 299 (1995).
Re: Re: Re: Re: Re: Re: served complaint today - question! Thank you, I will review that case. You are correct, #1 does not have to happen and rarely does; usually they send #2 but I bet very, very few attorneys do. I think more defendants should use this defense. The burden of proof is on plantiff to show they sent collection notices and demand letters and very few will send something with signature required for small amounts. BOOM... another FDCPA violation!
Re: Re: Re: Re: Re: Re: served complaint today - question! This has been discussed at some length here recently. The plantiff does not have to prove you received anything. Look at a few of the cases in Butch's validation thread. Mahon vs Credit Bureau of Placer County and a case from Hawaii.
Re: Re: Re: Re: Re: served complaint today - question! SORRY!! I thought this was small claims. This changes the whole game. 1. File an Entry of Appearance, this basically says that you appear in the matter, this allows you more time to form an answer without 2. File a motion to dismiss for failure to state a claim upon which relief can be granted. (basically you are asking the court to throw out the whole case because the plaintiff fails to state all elements of a claim. There are alot of places on the web to help you form this motion.) Most likely the court will deny the motion but what you are doing is buying more time for yourself and adding up the costs for the Plaintiff. You can tie this up for years if you want BUT you need to focus on getting to a settlement and rid of this ASAP.
Re: Re: Re: Re: Re: served complaint today - question! Thanks for the info. Yeah, I plan on filing a motion to dismiss b/c they did not produce any documents in the complaint... probably will get denied but more work for them. Wait till they see my answer! John from dueprocess sent me a sample answer that I will slightly modify to use. Sounds pretty strong. Basically it puts the burden of proof on the CA to produce everything, including the original agreement with my signature. Even if they produce the document, it has to be "authenticated" according to John. (Not sure what the judge will say... judge asks "is that your signature" and I say "I cannot be certain, is this document authenticated?"). Don't know what will happen... however, there are a lot of items I can bludgeon CA with during discovery. For less than $2k I think they will quickly give up or ask to settle. As pro se defendant I have lots of time... they are busy trying to collect to make $.. muahahaha... they want to play games huh? Then let's play games. Let's play discovery games.... Also, I have them on two FDCPA violations I am filing counter-claim. If anyone else has other advice/suggestions, I'm combining the best-of-the-best advice from everyone, including from CN posts, Bill Bauer, and John Gliha. I do need to do some rigorous research to make sure all "advice" I am given I fully understand the law and have case law to defend my position. This CA attorney used the popular Legal Solutions Plus fill-in-the-blank software and his office is 400 miles away. I don't think he wants to travel and make an apperance for a measly $1500 (which I will dispute amount which should be $900), and possibly lose on counter-claim due to FDCPA violation. I think this attorney is just hoping for an easy MSJ which he only needs to file with the clerk. No way, man. I'm going to make him work! Will keep 'yall updated with my results.
