I've been lurking this board for a long time and, thanks to the search function and several months of wading through threads, am pretty confident that I've got a decent defense going. I see it this way: even if I show up and have a 5% chance of winning, that beats the 0% chance of losing that comes with not showing up. The backstory is that I have an old debt that's about 3 - 5 months away from SOL. It's been validated (albeit weakly) and I'm attempting to settle, but I'm also attempting to prepare for court should that become necessary. Based upon the proximity to the SOL it looks like laches might be my best defense, along with failure to comply with federal law (FDCPA violation; my validation came from a different debt collector who didn't send the 5-day notice) (or maybe that should be unclean hands) and SOL from the "choice of law" clause in the original agreement (though I've seen very little here on this, and haven't seen any actual verdicts). So here's a question I haven't seen here before: If this goes to court and we wind up before a judge, what's the process? I assume that the plaintiff will make their assertions and I'll follow with my defenses. If the plaintiff disagrees with one of my defenses, is that an objection? Or are "objections" reserved for violations of rules of civil procedure? Also, when I'm making my points (in court, not on the response), do I need to cite case law or statutes? For example, is it sufficient to say "Our statute of limitations here is ## years"? Or should I add "...as per title ## section ##?" Finally, when speaking to the judge, if I'm stating my laches defense, how should that be phrased? I understand the notion of concisely establishing my reasoning, but ... then what? "And that's why I believe the plaintiff's claim is invalidated by estoppel of laches."? Thanks for any help. And thanks for the forum -- this is easily one of the more level-headed credit forums out there. It seems like there's a little more common sense and a lot less armchair-lawyering going on here than some other sites.
I would think the rules of evidence would give you an advantage if they have shaky proof that the debt is yours. Are you going to a superior court, small-claims, etc? Can you go to the court and sit in on some current cases to see how your judge operates his/her court? That would give you a clue as to how to prepare and present your case. You could also look at similar case law to see how those were argued (and if they were successful).
Thanks for the tips! I noticed that when they responded to my DV, they sent an account statement that did not reflect the value asked. It gave a balance and showed an interest rate, but I thought that the FDCPA required the validation to show accounting up to the value disputed (ie, a statement of "Your balance was $4000 as of 01/01/06 and your interest rate was ##%" would not be sufficient if they are demanding $6000). Their response also contained a misspelling of my street name (number and city are correct, though). I'll look into my state's rules of evidence, but does this sound like something that would foul up their compliance with the validation procedure? The amount claimed is well over the maximum for small claims, so if this goes to trial, it will be one notch up. I'll check with that courthouse and see if they allow the public to watch the proceedings - good suggestion!
Actually, I just reviewed the definitions of the courts in my state, and it does in fact appear that the amount in question is within the range of what can be heard in small claims. Whew - I've dealt with small claims before (as plaintiff, amusingly), and I know that the judges are very tolerant of pro se representation. One of my big fears was angering a judge by going to a higher court and making a procedural mistake. So THAT'S a big load off!
It's not clear what your situation is. Have you been served? Has the creditor brought a suit against you? Has a collection agency brought a suit against you? Are you suing for FDCPA violations or are you countersuing? ??? Knowing the details would make it easier for people to provide specific advice. If you're going to be suing based on a cause of action resulting from an FDCPA violation, you should know what the law requires (not much) and what other case law has supported or not. Also what passes for FDCPA verification is much different than what passes for evidence that the debt is yours and that you are the one responsible to pay it. One of the things that gets complicated is keeping the debt separate from the collection of the debt. That you may or may not owe a debt has no bearing on the fact that a 3rd party debt collector must comply with the FDCPA (etc.) law. That they think you owe a debt can cause them to violate the FDCPA and if you sue them on the grounds of an FDCPA violation, they might try to say it doesn't matter because you owe the money but none of that changes the fact that the debt and the collection of the debt are two completely separate things.
I have not yet been served. I'm trying to settle right now. I anticipate being served in the near future (scare tactic), so I'm trying to prepare now. We're 6 months from SOL, and are already past the SOL from the cardholder agreement's "choice of law" clause. From what I've read, it's difficult to enforce such a clause in my state, so although I'm going to try, I expect I'll have to rely on laches. If they do bring suit against me, I plan on countersuing for a FDCPA violation (failing to mention my rights within 5 days). My first notice of the debt came from a lawyer at CA#1 earlier this year. I responded with a DV (CMRR), and several months later, received a reply from a new CA (CA#2). They provided some account statements that do not reflect the total balance demanded (they show the balance as of several years ago along with an interest rate) and that have a typo in my address (misspelled street name). This letter also demanded payment within ten days. As this is the first time I've heard from CA#2, they should've included the FDCPA rights notice. Although the letter says "this is a communication from a debt collector, any communication will be used for that purpose", there is no mention of my right to dispute the debt. I was under the impression that even if a CA includes proof of validation in their first contact, they are still required to provide a notice of the FDCPA rights within five days of first contact. Also, the lawyer from CA#1 is listed on CA#2's letterhead. But both letterheads have different firm names, different mailing addresses, different cities, and different signatures on their letters. It looks like maybe the lawyer from CA#1 either left his own practice to join CA#2, or simultaneously works for both CAs. Either way, I don't think the FDCPA cares; it just says those rights must be given. As you said, even if it's indisputable and uncontested that the debt is valid, they're still required to comply. Any thoughts? EDIT: Also, wouldn't CA#1 providing validation information to CA#2 regarding the debt be a violation under Section 805(b)?
I would DV the 2nd if you haven't already. READ THE FDCPA and understand what verification means. It sounds like you're on the right track. RE: #1 it sounds like your DV chased them away so they sold it to #2. It might look like the same one to you, but it's now a "new" collection so you have to start all over (I hope you sent a DV letter to #2). Depending on what #2 said in their letter you might have them cold on at least one if not multiple FDCPA violations with some concrete case law to back you up. If that was the case, I wouldn't wait for them to sue you, I'd go down and file suit against them. They might counter sue for the debt but if it's on the 2nd JDB, I would doubt they would if they already know you're lookin' to put up a fight (the 2nd JDB is going to just go for the easy money). Even if they did, chances are by the 2nd JDB the documentation is flimsy. Bottom line, there are easier fish to fry. Who knows, you might even make a buck on the deal.
Sue ... or countersue? To be clear, what happened so far is this: 1) Received letter from attorney at CA#1 2) Sent DV, CMRR 3) Several months later, received account statements (balance incorrect, address typo) from different attorney at CA#2; attorney's name from CA#1 is listed in the letterhead for CA#2. 4) Sent "Your validation is improper / here's a settlement offer" to CA#2, CMRR A note about 3: This was my first contact from CA#2 and my first contact from the person who signed CA#2's letter. This did not contain the necessary FDCPA language. I know that FDCPA says that some things can be omitted if the documentation is included in the first contact (mine included the name / addr of the OC), but I would think that things like the "30 days to dispute" are still required. Hence, the violation. To be safe, I'll send a DV letter on Tuesday (CMRR, of course). I assume that exercising my rights under FDCPA (DV letter) doesn't excuse them from providing the language in their first contact (under the guise of "Well obviously the alleged debtor already knew his rights, so no harm was done")? Also ... you mentioned "with case law to back me up" on an FDCPA violation. Where do I go to find relevant case law? Also, I believe I read that I can file in small claims (instead of federal court), but doesn't this have to be filed in their jurisdiction (out of state)? And ... finally ... can I ask why you suggest suing instead of a countersuit? My thoughts -- and this is my first time going through this, so I defer to experience -- are that if they're just sabre-rattling and don't plan on suing, my filing a suit would "wake the sleeping dog" and get me some additional attention (or get them to ignore the settlement effort in lieu of full payment via court). Whereas if they sue me first, I can still countersue with equal effectiveness. In other words, as far as I know, I have nothing to lose by countersuing, but initiating litigation may be a bit more risky. And again, thanks for all your advice.
Like I said, I'd treat #3 as starting over with CA2 not a continuation of CA1 (after all, without verification, how the heck are you supposed to know who's got a legitimate claim to collect on the debt? Are you just going to send your hard-earned cash to anyone who calls you on the phone or sends you a letter?) Sue or Countersue? If they wanted to sue you, my guess is you would have gotten a summons instead of a letter. Law suits require lawyers and even the paralegals that take a pile of claims to small claims court in order to get default judgments cost money. Real lawyers that have to litigate in court room cost even more. It's much easier and cost-effective to sue the people who don't put up a fight. If you're suing them for an FDCPA violation, you're probably going to also put up a fight if they take you to court on the debt. That's a lot of cash money they have to spend on a marginal chance that they'll win AND be able to collect (remember, if you couldn't pay the original debt, you'll probably be a pain in the butt to collect on a judgment). All this and there are plenty of easier fish to fry in their debt portfolio. To you, this is a big deal. To them it's just another number. Now some "law firms" (a.k.a. collection agencies) are more anxious to sue than others but, like I said, if these guys were one of those, you'd be answering a summons, not a letter. Bottom line, if you can sue them (and you're up to filing a law suit), then go for it. Chances are they'll pay you and leave so they can go and move on to the next one. It's just cheaper for them to cut their losses (and then sell the debt to another JDB . But, if you're going to sue, that's a non-trivial task. I did my research using PACER which has a transcript of all the federal district court trials. I probably should have gotten a westlaw or lexis account, but PACER seemed like the best value for what I was trying to accomplish. After being jerked around by the last CA who tried to collect on a questionable debt, I now have zero tolerance for any FDCPA violations. I also have all the templates from my last (successful, BTW) suit in small claims court and I'm more than happy to change the names and file another one. They want to go to Federal District Court? (They move faster than Small Claims). Bring it on, baby! I have my copy of the Federal Civil Rules and Procedures and I'm ready to go. BUT, even with all that, a law suit is still a PITA (for me, anyway). I'm not the tedious, record-keeping, phone call-recording type by nature. And those are the sorts of habits you need to present a successful case. So while I have zero-tolerance, I also realize what it will cost me to pursue a law suit and I keep that in mind. But once I decide to do it, I can be very obsessive. To sue or countersue is up to you. I, personally, wouldn't wait because by they time they decide to sue, you'll have two cases going at once. If you sue and then, on the off chance, they decide to countersue for the debt, at least the cases won't be quite as parallel and you'll be the one with the head start. The best defense is a strong offense.
