Summons

Ok, things are not as bad as you may think

1) Just becasue the CA has sold the account or retained an attorney to collect for them doesn't mean that they are not liable for their violations of the FCRA. If those violations have occured within the last 2 years (as noted in the FCRA) you will need to file a lawsuit against them.

2) Is the 2nd Attorney representing the CA or is he trying to collect the debt himself? This is important to know. If he is representing the CA then you will file your lawsuit by making a counterclaim against the Plaintiff (the CA). If he is trying to collect the account for his own business purposes you will need to file a counterclaim against him personally for failure to validate the debt AND enjoin the CA that he obtained the debt from for thier 7 violations of the FDCPA. Look closely at state statutes to make sure that you cannot add more charges against the CA and/or the opposing attorney.

3) What state are you in? This would help in knowing what the rules of civil procedure were for where you live

4) The opposing attorney can REQUEST that the judge allow him to phone conference in on a hearing. It's up to the judge to allow or disallow it.

5) Go to the courthouse and ask for a copy of all filings in the case. You will need these for yourself and to take to the attorney you are going to see. Be careful to look at where the person collecting the account (CA or Attorney) is located. Obviously he is not local or he wouldn't be trying to phone conference on a hearing. This works to your benefit. It is much easier for you to run up his operating expense and drive the plaintiff into seeking to settle with you on more favorable terms.

6) be very, very careful with your attorney. most are going to try to settle this without a trial. You might not want this to occur. Your ability to find a jury sympathetic to your case is a positive for you. Your best defense is to learn as much about the laws of your state, locality, and federal law so that you can determine what the best course of action is for you, not for your attorney's bank account.

7) Ask your attorney about what proper venue is for this case, any jurisdictional issues which may be in play, what the worst case is in this matter (what are garnishment or lein laws in your state?) Ask how much experience he/she has in these cases. Shop smart.

8) When you review filings in this case, be sure to point out to your attorney that you have not been served with ANY papers regarding the action. The lawyer sending you a letter that they are going to file a lawsuit is not proper service of papers. This could come in handy to you in either the trial or in the possible need to appeal a judgement.

9) The judge may not be up on the laws. This is true. THat is why it is YOUR responsibility to educate him. Start learning how to research information and case law. You can help your attorney out in a huge way by doing this. As I said before he wants to spend as little time on this case as possible--minimizing his work and maximizing his profit---how does he do this? spend more time negotiating a settlement (which might be an injustice to you considering the FDCPA violations and 7k you are due) than researching how to WIN your case. That is just the facts of life.

10) You have a GREAT DEAL of leverage in this situation. a) You have the money that they want. b) There are numerous violations of Federal law involved that makes them owe YOU a significant amount of money. You just need to work to go get it.

11) Did the summons/Pretrial come from him or from the court? If it is from him, it may just be a bluff to get you to cave into his demands. Start fortifying your spine now--You will need it to be hard as iron before this is all over. He is counting on you laying down without a fight and allowing him to get a default judgement. When you start fighting tooth and nail they will be the ones that buckle.

12) Show the judge the copy of the FDCPA which describes what EXACTLY is required in the process of validation. Show him the copies of the letters you sent to the CA AND to the attorney. Show him case law which states what must be produced by the CA and attorney. Explain to him by showing him the FDCPA that they are liable to YOU for not following the statutes. Show him that you are reasonable and that they are trying to bull rush you. You have done nothing illegal. They have. You may owe the debt, but that in itself is not a violation of the law. Their actions are.

Send us some more info on what the collections accounts are for, how much, who the OC was, the CAs that have been involved (by name) the 2nd Attorney's location, etc. Maybe we can help you out.

Just take a deep breath. Don't get too worked up yet. This is a big poker hand and you are just discussing what the ante should be.

Hope this helps..btw, I'm not a lawyer and my advice may be worth what you have paid for it. LOL

 

Wow...I'm glad you came here. You were about to be scammed on a monumental level.

March 18th isn't that far away. But I'll get to that later in this post. First things first.

Tomorrow, you need to fire your attorney. He would have you ruin your credit history for the next 10 years over a 4100 dollar alleged debt. His only interest is for you to give up on a case that won't be lucrative enough for him and pay him a few thousand dollars to file your bankruptcy. He does not, and apparently can not, represent you in a way that is in your best interest. Next, TOMORROW, you MUST file a counterclaim agains Sherman Acquisitions for "an amount not less than $16,000" for multiple violations of 15 USC 1692g on multiple dates. THIS MUST BE FILED AT LEAST 5 DAYS BEFORE THE PRETRIAL CONFERENCE! Also, File a "Defendant's Motion for a continuance of the Pretrial hearing". Your grounds for this is that you have been unable to find suitable representation and you may be forced to proceed Pro Se. This might buy you a couple of more weeks before the hearing to prep.

You have 2 options as I see it. Find an attorney experienced in consumer law or represent yourself Pro Se. Any BK attorney in your town is likely to be of the same ilk as the one you talked to and, in any event, doesn't have the interest or expertise to represent you in this matter.

So....here is where you might start in this case. Also are my perceptions on your circumstances.

1) If you choose to go Pro Se, you will need to try to get some more time to work on this. The pretrial hearing will deal with a limited number of things. Here is what you will face at the hearing:

a) the attempted simplification of issues--Your stance on this is that you have tried repeatedly (as evidenced by your 7 letters to Sherman Acquisitions and 1 to thier Attorney) to obtain a proper validation of the debt related in this matter. NEVER EVER EVER ADMIT THAT THIS DEBT IS YOURS! It is their job to PROVE that it is yours. If you admit to the court that the debt is yours, under Florida law, the judge MUST IMMEDIATLY rule in favor of the Plaintiff. All you need to do is say that you don't recall having a debt with sherman acquisitions, and, you were simply trying to verify that the debt was truly yours and that the amount in question was valid. NEVER ADMIT THE DEBT IS YOURS. Another issue is proper jurisdiction of this trial. You should try to have it removed to Federal court if possible. you will probably have better luck negotiating there.


b) The necessity and desirability to amendments to the pleadings--Here you will notify that you intend to file a counterclaim in the amount of $16,000 against Sherman acquisitions (8 non validations, 8 proceeding to collect a debt violations under 1692g for 16k), applicable attorney fees, and that you reserve the right to amend your countersuit as additional violations of applicable state and federal law come to light. In addition, bring a copy of the letter you sent to the plaintiff's attorney and show him a copy of 1692g which prohibits collection attempts during the dispute. Let them both know that you will be seeking sanctions against the opposing lawyer with the Florida Bar for violation of 1692g.

c) The possibility of obtaining admissions of fact and of documents that avoid unnecessary proof--this in essence is discovery. In Fl. small claims, if you represent yourself the plaintiff will only be able to pursue discovery if the judge allows it. Its up to you in this matter. It can be a great ass kicker but also be very expensive for you when they follow suit with discovery aimed at you. Right now I would lean against discovery. It doesn't really help you--you have proof enough to win your countersuit if you have relevant copies of letter sent, CMRRR reciepts, etc.

d) Limitations on the numbers of witnesses--you probably don't have any or really need any. Press for no witnesses.

e) The possibilities of settlement--lol...this will be funny...tell the judge that you are willing to accept a removal of all negative credit entries on your credit report, a written agreement by Sherman acquisitions to hold the debt as paid in full and not to attempt to resale or collect further, a written apology for failing to validate the debt with you and a verbal apology from the opposing attorney in the presence of the judge. You will consider the matter closed if they are willing to do this.

f) Other such matters as the court deems necessary--lol..they will be in such a state of shock at you taking the offensive that I doubt anything else will be said.

2) Don't worry about garnishments just yet. You are going to win this--If you are diligent and seek help from those who have been there. The courts in FL are VERY friendly to Pro Se folks. Use that to your advantage.

3) During the Pretrial hearing don't show the attorneys for the plaintiff anything other than things they may already have. Don't bring out court precedents you will use in the case (you are showing him your cards) or anything else that you don't feel you have to to simply state the facts. The hearing is to set guidelines, not to try the case. Also, let the judge know that you would like to have a jury trial. Average joes will be easier to swing and see your situation than will a member of the "good old boys" club (the judge)

4) Take a deep breath. you can do this. Here are some things to get you started....

Here is site which will be a good starting point for you (florida small claims rules).

http://www.florida-justice.com/Fla.Sm.Cl.R.htm

Be sure you look at the Florida Rules of Civil Procedure here:
http://phonl.com/fl_law/rules/frcp/

Florida statutes, to try to drum up other violations to cite on the complaint are here:
http://www.flsenate.gov/statutes/index.cfm?Mode=ViewStatutes&Submenu=1

also, the rules of evidence. I think that generally Florida follows the Fed rules of evidence.

 

I've been watching this thread with great interest. Unfortunately, I was served with a summons two days ago and I'm so new here I'm having a hard time figuring out where to start. I've spent two solid days reading, and searching but there's a lot of posts to filter through here.

It's a debt for my BK lawyer that was submitted to a CA. Only $300, but now they've added legal fees and want a judgement for $550. This is in Washington State, and I haven't seen much info here for our state.

Is there a way I can delay this so it doesn't turn into a default judgement in 20 days?

Ideas?

 

Sure there is. The worst thing that you can do is to do nothing. They are expecting this from you. If you put up even the least bit of a fight you may be able to get a settlement on better terms (It is worth it to take less money and give you back your credit than to spend thousands in legal fees to collect $550)

First, you need copies of all of the filings that have been posted with the court. Go and get them today so we can have an idea where the case is.

Next, look up several things for Washington State...these should be posted on the web.

Washington rules of civil procedure
washington rules of evidence
washington civil remedies code
any local rules for the county in which you live

Once you have that info you need to get started filing. Have you tried to negotiate with them before?

Let us know when you have more details....

 

Read the newbee special below.

 

AND reporting to the CRA during the within 30 days from request.
toothbknow
**********************
It's not during 30 days it's reporting before they validated.

 

What kind of debt is this?? If it is a credit card, and it was charged off 4 years ago, and you are in Florida, you have an affirmative defense - the statute of limitations has run. They can sue you but they can't win.

I'm not a lawyer.

 

Hey tooth,

Sorry I didn't get on sooner to help you with the draft. I started a new job today (I have been a stay at home dad of twins the last 15 months). Anyways...

congrats on the decision to go Pro Se and not lay down under those folks heels. Now is the time to become an expert in the points at hand.

You have done well filing the continuance, counterclaim and answer. Now you have a little time to get organized and do a little research. If in the next few days or weeks you find that you didn't cite something that is important in the counterclaim or answer you can always file an amended counterclaim or amended defendants first answer. The continuance will likely buy you a bit of time to get things under control. All and all you did great!

The counterclaim doesn't have to be all inclusive since you don't want to show all of your cards to the other side. You need to list what happened, the dates they occured, the laws they violated, and the damages that you incurred as a result of them. Be sure to also ask for "and further damages as may be deemed proper by the court" This opens up for punitive damages if they are applicable.

Breeze brings up a very good point in that if the chargeoff was more than 4 years ago the SOL may have expired. If so, you can get the judge to dismiss thier case completely because they are not allowed to collect on the debt. Then they will become the DEFENDANT and back on thier heels. Let us know when it was originally charged off. When was the last date you made voluntary payments on the account? When there is a chargeoff (credit account like sears) the SOL is 4 years. The time from the CO until you made a payment counts toward the SOL. The time from the last payment you made on the CO until today also counts. If the total is 4 years or more, they CANNOT collect on the debt.

You won't be able to force the attorney to run away unless you can get his charges removed by using the SOL argument. If you can, just watch how quickly he tries to settle with you.

With the amounts and account with the OC your position should be that "Your honor, I have tried to have the plaintiff provide me with information about this collection--including signed contracts, billing summaries, and any other proof that this account is mine and that the amount they claim to be due is true and accurate. Their failure to do so has precluded me from determining if the debt, as stated by the plaintiff, is mine." In this you are not lying--you are just saying that you tried to validate, they wouldn't do it, so you can't say if the amount they say you owe is accurate and true. Viola, giving an answer to a question without answering the question that was asked--aka lawyerese.

Once again I'm sorry that the time is so late and that I wasn't able to help...post back and I'll try to reply more promptly

 

Good for you

I'd be happy to look at it. BTW, you may need to be more specific in the denial of thier claims---circuit court is much more formal as far as pleadings, motions, etc.

Just shoot me an email and I'll look it over when I can. I might be able to help you draft some as well if you need it.

I purchased a book that was for pro se litigants. The author was from florida and much of the orientation of the book is headed to courts in that state. I'll try to get a title for you so you can go get a copy. It was only 15 bucks or so at Barnes and Noble.

You will do fine with this. You may just do yourself proud

 

LISTEN TO ME.

Open or closed refers to the type of credit extended originally. Open= a revolving account, like a a credit card account, Closed = closed-ended like an installment loan - it does NOT mean whether the account is open or closed in the normal sense of open or closed.

Making a payment after the account was charged off does not re-start the SOL. The SOL would have started about 6 months before this account was CHARGED OFF BY THE ORIGINAL CREDITOR.

What kind of account was this???

YES, I'M SHOUTING, TRYING TO GET YOUR ATTENTION. YOU'RE SHOOTING YOURSELF IN THE FOOT.

 

The SOL starts on the date of the last transaction that was a "cause of action" - that's the date you defaulted in your payments.

Accounts are charged off by the creditor 180 days after the initial default (when you missed a payment and never caught it up again). Making a payment does not re-start the SOL.

Validation won't hurt you, but you need to answer the summons with the fact that this debt is out of statute.

Don't get your information from the wrong people!!! This account is past the statute of limitations, they can't collect on it, and it is UP TO THEM TO PROVE OTHERWISE - don't let anyone tell you that it is up to you, it isn't..

Write up that answer for the court, and then sue for violations. Forget about the validation. If you do not assert the SOL as your defense, you give up the right to do it, so do it ASAP!!

Nothing else matters, believe me.

 

Re: Re: Summons

OK. That may be the date you "last made payment" but how far behind were you when you made that payment? The SOL starts when the first deliquency occurs (The second your account went 30 days late is when the beginning of the SOL started). Not the last payment. If your account has EVER been 30 days late at ANYTIME PRIOR to that October payment, that's when the SOL began.