Creditwrench teaches how to defeat abusive debt collectors by empowering the average man to successfully do battle with the big banks both in and out of court and win without lawyers.
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Monday, July 07, 2008
When to take depositions
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Wednesday, July 02, 2008
How the creditwrench method works.
| Returning Reported Item | |
| Question: | I have a charged off credit card debt that finally became too old to report in August of 2007 and stopped showing up on my credit report. Today I received a letter from a collections agency saying they now own the debt, requesting to verify the debt and threatening to report to my credit if it's not paid immediately. Can they really report it again to the credit bureaus now? Isn't it too old or does it start over from the date they bought it? Thanks! |
| Answer: | They can buy the old debt and they can report it to the credit bureaus but if they do then they have illegally re-aged the listing. You could sue them in federal court for that. So you received a letter from them and now the next step is not worrying about what they might report to the credit bureau but rather seeing to it that you get a validation/dispute letter off to them within the 30 day time limit allowed before they do have the right to assume the debt is valid and proceed with collection activity. You also need to worry about whether or not that initial contact letter carried the full Miranda notice either on the face of it or on the reverse side of it. They can continue collection activity until such a time as they have received your validation/dispute letter. Since there is no requirement that they even reply to your letter what are you going to do if you don't get a response from them? Are you just going to sit there and wait forever or what? My students learn that although there is no requirement that they ever reply nobody wants to wait forever to get such matters resolved so they wait 30 days and then send out what is known as an estoppel letter. Estoppel letters have no force or effect and no legal basis either but the do look frightening and serve as a reminder that you are wanting them to respond to your validation letter. If they don't respond to that within 15 days we send out 2 more letters. One goes to the oiginal creditor and outlines all of the violations that the debt collector they hired has committed and a carbon copy goes to the debt collector. The intent here is to hopefully cause the creditor to become unhappy with the debt collector and either call or send him a sharply worded message saying that if the debt collector don't comply with law he won't get any more business from the creditor. If my students don't get any response from the debt collector after that within 15 more days the student sends out an intent to sue letter and a copy of the properly prepared federal case which he will file if there is still no response from the debt collector. To add emphasis to the intent to sue the letter is also accompanied by a waiver of service of summons for the debt collector to fill out and return if he wants to save the cost of being served with the summons. If that don't wake the fool up the student moves forward with his federal lawsuit against the debt collector by actually filing in federal court. In your case you could also include an FCRA violation complaint if they have illegally re-aged the debt. That will make the cheese much more binding for them. Of course, once served with a summons to federal court the debt collector must answer timely or the student can file a motion for default judgnent. Debt collectors who are sued in federal courts for violations of various kinds often ignorantly respond with a statement of some kind saying that the plaintiff student owes them money or that they have a judgment against the student and the court promptly tells them that such pleadings are irrelevant and not allowed because the only issue before the court is whether or not they broke the law and the court does not want to hear any such irrelevant arguments. Taking them to federal court is the way to win against debt collectors. Do it to them before they do it to you. Now then, what web site or message forum is going to take you by the hand and teach you how to do all of that and much, much more? Bill Bauer 405-684-9297 405-227-9423 RECOMMENDED READING: How judgments work 18 questions to ask debt collectors every time they call. How to defeat debt collectors Objections is a Q & A game that will teach you what to object to in court. LISTEN TO THESE CREDITWRENCH STUDENTS CHAT ON OUR FRIDAY NIGHT CONFERENCE CALLS. Creditwrench Student Mike Mirras tells about how creditwrench works on our Friday night conference call. Andrea talks about her day in court Statute of Limitations for all states Statute of limitations for all states How to set up your hard drive for creditwrench files. Makes them easy to find. A diagram of how to set up your hard drive The Creditwrench conference calls will start this coming Friday evening at 7 P.M. Central time. It is free and open to the public. There is no cost or obligation other than what it may cost you for the phone call itself. You can join in and ask questions or just listen or whatever you want to do. Dial-in Number: (712) 432-1601 Access code: 508548# You might also want to visit our message forum at http://consumers.creditwrench.com to get answers to questions you need answered before next Friday night. If you live within driving distance of Oklahoma City you can also come to our monthly meeting of the Oklahoma City Chapter of Jurisdictionary meetings. They are held on the 2nd Thursday of each month at Coit's Root Beer Stand which is located on the corner of SW 24th & Western Ave in Oklahoma City. The meetings start promptly at 7:00 P.M. and last for 2 hours. Attendees usually arrive about half an hour early so they can enjoy a good meal at Coit's Root Beer Stand. The meetings are free and open to the public and we can discuss your problems as well if you like. We are going to start holding mock trials so that you can learn some court room procedures. |
Saturday, June 28, 2008
Collection calls and how to handle them.
| Wrongful Collection calls. | |
| Question: | I have been dealing with creditors trying to get in contact with my mother to collect her debts for some years now. My mother has given my information as her contact information, so the collection agencies believe they are contacting her, when in fact, they are contacting me. What can I do to get these calls to stop? I have already told some of the collection agencies that they have been given the wrong information, but most of the time they either do not believe me or just hang up and call again later. |
| Answer: | I have the perfect answer to your type of problem but in order to use it effectively you need to understand the concepts behind the debt collection process. Here is the inside story. Debt collectors work on a base salary plus commissions on all the money they collect. The base pay is pretty low, just enough to keep them comeing to work every day. The bonus money is usually about 30% of what they collect after they have made their monthly quota which is what they must collect before they can start working towards their bonus money. They have to make lots of calls before they can start getting their bonus money so they really can't spend all that much time with any one call unless it promises to get them a large amount of money. Naturally, the larger an account is the more diligent they will be in trying to collect it. They will often become quite belligerent if they find that they are talking to women, oldsters of both sexes or very young adults. Debt collectors know that they have to control the conversation from start to finish or they will collect very little so they always employ a script or canned speech to start out each call. Of course, the script is abandoned fairly quickly depending on how the call proceeds. The way to stop them cold is to have your own script and never let them control the conversation. You need to have a script containing enough questions to keep them on the line for as long as possible and end the call when they refuse to answer any more of your questions. If they call back make them go through the same script every time. Don't vary the script, just make them answer the same questions every time and it don't take very long to make even the most thickheaded of them realize that they are doing nothing but wasting their valuable (to them) time and getting nowhere. They simply stop calling you because it isn't going to help them make their quota. My script located at http://www.creditwrench.com/18questions.html will put a stop to their hounding phone calls very quickly. Once you start using the script you will begin to hear the phone ring once and maybe the caller I.D. will show who called but they hang up and move on as soon as they realize who they are calling. Andrea D. of Atlanta, Georgia who is also a creditwrench student just started using her copy of the script and you can listen to her describe her experiences to us on our Friday night conference call. Andrea sounds as though she is a very young lady but in fact she is more than 60 years old. If she can do it so can anybody. Listen to Andrea by clicking on the link below. Bill Bauer 405-684-9297 405-227-9423 RECOMMENDED READING: How judgments work 18 questions to ask debt collectors every time they call How to defeat debt collectors Objections! A game LISTEN TO THESE CREDITWRENCH STUDENTS CHAT ON OUR FRIDAY NIGHT CONFERENCE CALLS. Listen to a creditwrench student tell how creditwrench works for him Andrea D. of Atlanta Georgia tells about her learning experience Statute of Limitations for all states Statute of limitations for all states How to set up your hard drive for creditwrench files. Makes them easy to find. http://consumers.creditwrench.com/sh...=7351#post7351 The Creditwrench conference calls will start this coming Friday evening at 7 P.M. Central time. It is free and open to the public. There is no cost or obligation other than what it may cost you for the phone call itself. You can join in and ask questions or just listen or whatever you want to do. Dial-in Number: (712) 432-1601 Access code: 508548# You might also want to visit our message forum at http://consumers.creditwrench.com to get answers to questions you need answered before next Friday night. If you live within driving distance of Oklahoma City you can also come to our monthly meeting of the Oklahoma City Chapter of Jurisdictionary meetings. They are held on the 2nd Thursday of each month at Coit's Root Beer Stand which is located on the corner of SW 24th & Western Ave in Oklahoma City. The meetings start promptly at 7:00 P.M. and last for 2 hours. Attendees usually arrive about half an hour early so they can enjoy a good meal at Coit's Root Beer Stand. The meetings are free and open to the public and we can discuss your problems as well if you like. We are going to start holding mock trials so that you can learn some court room procedures. |
Saturday, June 21, 2008
Deadline tomorrow!! Answering Summons
| Subject: | Deadlin tomorrow!! Answering Summons |
| Question: | Hello, Not sure how I put it off to this point, but I have to answer a summons for a credit card debt, and the end of my 28 days to answer is tomorrow. I am already planning to file bankruptcy very soon. The essence of my question is: What can I legally and honestly deny or claim "lack of knowledge" about, without getting myself into unnecessary trouble and without causing any problem with my subsequent bankruptcy filing? Here are the details. I apologize for long-windedness, but I hope the the more information you have the more quickly and accurately you can reply. I've already done a lot of research, and I think I know what I need to put in my "Answer". I know how to format the answer and so forth. I only need to answer in order to buy time, avoid a default judgement, delay the judgement so I can file for bankruptcy. I want to avoid getting into any trouble by denying or admittin g too much. The allegations in the complaint are straightforward and essentially true. I do not believe I can deny the debt, but I can honestly say I do not know the amount claimed is correct. What I want to say in my answer is something like,"Defendent denies for lack of information the allegations in the following paragraphs: 1, 2, 3, 4", or maybe just "Defendent denies for lack fo information all allegations of the plaintiff". Have have typed in the paragraphs of the complaint (at teh bottom of this message). Basically I can deny certain knowledge of the specific amount in paragraph (1), as I do not have recent statements in my records. Of course, I have no reason to believe that the credit card company's record are incorrect. I am not sure that paragraph (2) is even considered an "allegation" that needs to be admitted or denied. Certainly 2(b) and (c) are not within my knowledge. Regarding 2(a) I cannot confirm that I have received statements every month. I have moved recently, and in truth I am careless with my mail. I do have a statement from several months earlier that cites a slightly smaller amount (i.e. less interest and late fees) than in their paragraph (1). Paragraph (3) refers to "this repayment obligation", since "this" must refer to the amount in paragraph (1), I think tat I can also say that I am unsure about paragraph (3) if unsure about paragraphs 1. Certainly I have a debt that is close to that stated in the claim, but do I have to admit that? Paragraph 4 mentions "the balance" rather than "this balance". Certainly I owe a balance and do not want to deny that. However, can I deny knowledge of the truth of paragraph 4 assuming it is again referring to the specific amount in paragraph 1? Obviously I do not want to make any false denials. I also do not want to claim "lack of knowledge" if when we sit down with a judge the judge is going to say something like "gimme a break, you had relatively recent statements, you knew the debt was at least $X, so you should have been more clear in your "Answer". -------------------------------- Here are the paragraphs of the complaint: 1) There is due the Plaintiff from teh defendant(s) upon a credit card account debt, account number #######, the sum of $#,###.##. 2) Attached hereto as exhibit "A" is an account statment attesting to the amount owed the plaintiff. The remaining account records are not attached hereto because, upon information and belief: (a) copies were sent month to the efendant(s), and are or were in Defendat(s)' possession, custody or control; (b) said records were archived by the Plaintiff; and/or (c) said account records may be voluminous. 3. Defendant(s) is in default on this repayment obligation. 4. Although due demand has been made, the Defendant has failed to liquidate the balance due and owing. |
| Answer: | Sorry I'm late but I've been so busy helping people that I'm running behind in getting out my responses on this forum. I do hope you got your answer in on time even though it may not be the best you could have done. But if you got your answer in on time let's move on towards defeating the complaint. Let's move on from worrying about whether you actually owe the debt to what is it that the plaintiff has done wrong that you can use against him. In other words, get away from defensive thinking and shift to offensive thinking. That's the way you win cases if they can be won at all. First you say, "Obviously I do not want to make any false denials." What difference does it make if you do that or not? If you were guilty of a murder or other crime would you be wrong in denying the crime even though you know you did it? Of course not. When you deny you are basically only saying that you demand that they prove your guilt. It isn't lying or perjuring yourself. Nothing wrong with denials even if you know the allegations to be true. Secondly you say "I also do not want to claim "lack of knowledge" if when we sit down with a judge the judge is going to say something like "gimme a break, you had relatively recent statements, you knew the debt was at least $X, so you should have been more clear in your "Answer"." Judges sometimes do make such or similar statements but they are not allowed to do so. Your response to such questions from the bench should be an objection. Judges are supposed to listen to the evidence and testimoy before the court and make their decisions based on that and that alone. If the judge asks such leading questions and the defendant is so ignorant that he answers them instead of objecting to the questions then defendants deserve what they get. Creditwrench students know better than that. They know how to object and how to correctly explain the basis for their objections and if their objections are denied from the bench they know how to get their objections moved to a review by an appellate court. They learn about such things as how to quickly identify leading questions and what they can and cannot object to. They are provided with a fun computer program that teaches them what is objectionable, what is proper and how to object as well as what to do if the objection is overruled. You say that you are not sure that paragraph (2) is even considered an "allegation" that needs to be admitted or denied yet that is probably the first thing that should be attacked. A single statement is not nearly enough to prove a claim. The statement by the plaintiff's attorney is not even admissable because it plainly states that it is hear say. The mere fact that the phrase "upon information and belief" immediately telegraphs the fact that the attorney relies upon what he heard from someone else. He has no first hand knowledge about anything at all. Everything he states is hearsay and must be proven by testimony from a person or person having first hand knowledge of the facts alleged. That can be done through personal testimony or by affidavit. The attorney is actually begging not to be forced to procure the actual records from the plaintiff as he knows he is supposed to do and uses the excuse that those records may be voluminous. So what? Do your job and quit whining attorney. And account statements cannot attest to anything. They are copies and they are not even certified as being true and correct copies by the person who did the copying. Therefore they are not admissible in a court of law either. All of that makes little difference to corrupt judges who allow that kind of nonsense into their courts and get away with it because defendants have not learned how to effectively defend themselves against such outrageous conduct from a judicial system that cares not for the legal rights of defendants. 2) Attached hereto as exhibit "A" is an account statement attesting to the amount owed the plaintiff. The remaining account records are not attached hereto because, upon information and belief: (a) copies were sent month to the defendant(s), and are or were in Defendant(s)' possession, custody or control; (b) said records were archived by the Plaintiff; and/or (c) said account records may be voluminous. Creditwrench students learn how to do it the right way. Bill Bauer 405-684-9297 405-227-9423 RECOMMENDED READING: www.creditwrench.com/howjudgmentswork.html www.creditwrench.com/18questions.html www.creditwrench.com/Howtodefeatdebtcollectors How to set up your hard drive for creditwrench files. Makes them easy to find. http://consumers.creditwrench.com/sh...=7351#post7351 The Creditwrench conference calls will start this coming Friday evening at 7 P.M. Central time. It is free and open to the public. There is no cost or obligation other than what it may cost you for the phone call itself. You can join in and ask questions or just listen or whatever you want to do. Dial-in Number: (712) 432-1601 Access code: 508548# You might also want to visit our message forum at http://consumers.creditwrench.com to get answers to questions you need answered before next Friday night. If you live within driving distance of Oklahoma City you can also come to our monthly meeting of the Oklahoma City Chapter of Jurisdictionary meetings. They are held on the 2nd Thursday of each month at Coit's Root Beer Stand which is located on the corner of SW 24th & Western Ave in Oklahoma City. The meetings start promptly at 7:00 P.M. and last for 2 hours. Attendees usually arrive about half an hour early so they can enjoy a good meal at Coit's Root Beer Stand. The meetings are free and open to the public and we can discuss your problems as well if you like. We are going to start holding mock trials so that you can learn some court room procedures. |
Saturday, June 07, 2008
Tiffany W. day in court
Questioner: Alika
Category: Collections Law
Private: No
Subject: MEDICAL LAWSUIT SUMMONS
Question: I have recently learned of a medical account in collections that began at about $800.After speaking to the debt collector and my insurance, about $150 was taken off.I have been paying $50-$100 monthly since February. I received a summons to answer within 20 days.I have my payment history and can show that I've made 6 payments (if that matters).My balance is now about $340-without interest.I called the collection agency and was told that I verbally agreed (which is not true)to pay every 2 weeks and this is why my account has gone in the direction it has.I have no idea how to answer the summons.HELP!!!!!!
Answer: Learning how to answer the summons is not all that difficult. Tiffany W. from Shawnee Oklahoma became a creditwrench student and learned how to answer her summons. She went to Court and argued her case before the judge and then on last night's creditwrench conference call she reported what happened in court. You can listen to her story as she told it to us.
Tiffany W. from Stillwater Oklahoma reports on her day in court.
Copy and paste the url above into your browser and listen to her tell about her day in court.
You too can learn how to do it.
Bill Bauer
405-684-9297
405-227-9423
RECOMMENDED READING:
How judgments work
18 questions to ask debt collectors when they call
How to defeat debt collectors
The Creditwrench conference calls will start this coming Friday evening at 7 P.M. Central time. It is free and open to the public. There is no cost or obligation other than what it may cost you for the phone call itself. You can join in and ask questions or just listen or whatever you want to do.
Dial-in Number: (712) 432-1601
Access code: 508548#
You might also want to visit our message forum at http://consumers.creditwrench.com to get answers to questions you need answered before next Friday night.
If you live within driving distance of Oklahoma City you can also come to our monthly meeting of the Oklahoma City Chapter of Jurisdictionary meetings. They are held on the 2nd Thursday of each month at Coit's Root Beer Stand which is located on the corner of SW 24th & Western Ave in Oklahoma City. The meetings start promptly at 7:00 P.M. and last for 2 hours. Attendees usually arrive about half an hour early so they can enjoy a good meal at Coit's Root Beer Stand. The meetings are free and open to the public and we can discuss your problems as well if you like.
We are going to start holding mock trials so that you can learn some court room procedures.
__________________
Creditwrench - The lethal weapon against debt collectors
ceo@creditwrench.com
Creditwrench Blog
Category: Collections Law
Private: No
Subject: MEDICAL LAWSUIT SUMMONS
Question: I have recently learned of a medical account in collections that began at about $800.After speaking to the debt collector and my insurance, about $150 was taken off.I have been paying $50-$100 monthly since February. I received a summons to answer within 20 days.I have my payment history and can show that I've made 6 payments (if that matters).My balance is now about $340-without interest.I called the collection agency and was told that I verbally agreed (which is not true)to pay every 2 weeks and this is why my account has gone in the direction it has.I have no idea how to answer the summons.HELP!!!!!!
Answer: Learning how to answer the summons is not all that difficult. Tiffany W. from Shawnee Oklahoma became a creditwrench student and learned how to answer her summons. She went to Court and argued her case before the judge and then on last night's creditwrench conference call she reported what happened in court. You can listen to her story as she told it to us.
Tiffany W. from Stillwater Oklahoma reports on her day in court.
Copy and paste the url above into your browser and listen to her tell about her day in court.
You too can learn how to do it.
Bill Bauer
405-684-9297
405-227-9423
RECOMMENDED READING:
How judgments work
18 questions to ask debt collectors when they call
How to defeat debt collectors
The Creditwrench conference calls will start this coming Friday evening at 7 P.M. Central time. It is free and open to the public. There is no cost or obligation other than what it may cost you for the phone call itself. You can join in and ask questions or just listen or whatever you want to do.
Dial-in Number: (712) 432-1601
Access code: 508548#
You might also want to visit our message forum at http://consumers.creditwrench.com to get answers to questions you need answered before next Friday night.
If you live within driving distance of Oklahoma City you can also come to our monthly meeting of the Oklahoma City Chapter of Jurisdictionary meetings. They are held on the 2nd Thursday of each month at Coit's Root Beer Stand which is located on the corner of SW 24th & Western Ave in Oklahoma City. The meetings start promptly at 7:00 P.M. and last for 2 hours. Attendees usually arrive about half an hour early so they can enjoy a good meal at Coit's Root Beer Stand. The meetings are free and open to the public and we can discuss your problems as well if you like.
We are going to start holding mock trials so that you can learn some court room procedures.
__________________
Creditwrench - The lethal weapon against debt collectors
ceo@creditwrench.com
Creditwrench Blog
Friday, June 06, 2008
Capital One debt resolution
Cassandra
Subject: Capital One Debt
Question: Hello,
I am looking for some good advice on how to proceed with my dilemma. I have a Capital One credit card account that has been charged off and referred to a law firm for collection. I had received one letter from the law office back in April when they had not filled yet.
I did not contact them until last week when they advised that a suit had been filed (I verified). The papers we filed with the courd on May 1 with the courts 30 days ago and at some point in the near future will serve me with papers. They have tried to serve me but I guess they only have my old address.
I have tried to negotiate on the phone with the legal assistant and she will not budge on the lump sum amount even though I am only $1000 from what they are looking to settle for. I am sure the impact of having a force judgement on me will be detrimental to my credit score and will be tough since my employer will now know and my bank account will be frozen.
If I settle with a payment plan, I will be forced to pay the ENTIRE balance so at this point, I am trying to come up with the money to settle the account.
Could you walk me through what the time line and realistically what will happen. I want to keep saving to pay off the settled amount in lump sum but I don't know how much time I have. I have e-mailed the attorney twice and he has not responded and I don't want to volunteer my address.
Answer: I don't have a Cap1 card that has gone into default or that I am likely to be sued for but if I did I would approach the problem far differently than you have so far.
The first thing I would have done back in April would have been to mail the law firm a dispute/validation letter. Yes, I am aware that you owe the debt and that if I were sued I too would owe the debt but that really has nothing to do with how I would react. This is no longer so much of a morality issue as it is a practical matter.
When I got served I would wait until the last day or two before the time I had to respond was up and then would file a response to the court. What my response would be would depend to some extent what state I lived in and what the rules of civil procedure might have to say about acceptable responses but here in Oklahoma and most other states I would probably use a graduated denial.
Then I would follow that immediately with a demand for interrogatories,
admissions and production of documents. If the attorney had filed an affidavit from someone I would examine it very carefully for impermissable wording, outright falsehoods or misrepresentations of any sort. I would also investigate the notary public who witnessed the affidavit to see what state they were from and then check with the secretary of state for that state to see whether or not they were a real notary or some idiot who just went out to the nearest stamp shop and ordered a rubber stamp. That happens on rare occasions and I would want to be certain that such was not true in my case.
Next I would try to find out whether or not the Plaintiff had offices
in the city and state where the notary was from. If the plaintiff did not have any offices in the city or state where the notary is from I would immediately know that some outfit like TSYS and it's so called National Attorney Network has it's fingers in the pie. I'd also check out both the affiant and the notary to see if they were on any of the notary or affiant problem lists available on line. Edleman & Combs has one such list.
If notary or affiant problems surfaced I would file a motion to quash or strike the affidavit and probably to sanction the Plaintiff's attorney for providing false and misleading information to the court.
Of course, if I did file any motions with the court I would also prepare a notice of hearing and an order of the court as well as a certificate of mailing.
Then I'd take two copies of my motion to the clerk of the court and have them both file stamped and one copy actually filed in the case. Then I'd go to the judge's office and get a date set for the hearing of my motion. Then I'd go back to the clerk's office and file the notice of hearing.
Of course, before preparing anything I would have previously went to the post office and picked up a few green cards to use for certified mailing needs. That way I could have them handy so I could include the tracking numbers on my certificate of mailings documents.
Once I had finished with the business at the court house I would then go to the post office and mail copies of all the paperwork to the plaintiff's attorney.
And by that time I would most likely already have sufficient causes of action that I could file a case against the attorney and maybe the plaintiff too in the nearest federal courthouse. If things had progressed sufficiently I would then go ahead and file my case against the defendant attorney and if possible the plaintiff in the local court case as well in federal court.
Things are a bit stickier in federal court than they are in local courts but the outcome will almost certainly be in my favor compared to the probable result of the local case.
Bill Bauer
405-684-9297
405-227-9423
RECOMMENDED READING:
How judgments work
How to deal with abusive phone calls
The Creditwrench conference calls will start this coming Friday evening at 7 P.M. Central time. It is free and open to the public. There is no cost or obligation other than what it may cost you for the phone call itself. You can join in and ask questions or just listen or whatever you want to do.
Dial-in Number: (712) 432-1601
Access code: 508548#
You might also want to visit our message forum at http://consumers.creditwrench.com to get answers to questions you need answered before next Friday night.
If you live within driving distance of Oklahoma City you can also come to our monthly meeting of the Oklahoma City Chapter of Jurisdictionary meetings. They are held on the 2nd Thursday of each month at Coit's Root Beer Stand which is located on the corner of SW 24th & Western Ave in Oklahoma City. The meetings start promptly at 7:00 P.M. and last for 2 hours. Attendees usually arrive about half an hour early so they can enjoy a good meal at Coit's Root Beer Stand. The meetings are free and open to the public and we can discuss your problems as well if you like.
We are going to start holding mock trials so that you can learn some court room procedures.
__________________
Creditwrench - The lethal weapon against debt collectors
Email me
Creditwrench TV Blog
judgement
Oklahoma City Chapter of Jurisdictionary meetings
Jurisdictionary
Subject: Capital One Debt
Question: Hello,
I am looking for some good advice on how to proceed with my dilemma. I have a Capital One credit card account that has been charged off and referred to a law firm for collection. I had received one letter from the law office back in April when they had not filled yet.
I did not contact them until last week when they advised that a suit had been filed (I verified). The papers we filed with the courd on May 1 with the courts 30 days ago and at some point in the near future will serve me with papers. They have tried to serve me but I guess they only have my old address.
I have tried to negotiate on the phone with the legal assistant and she will not budge on the lump sum amount even though I am only $1000 from what they are looking to settle for. I am sure the impact of having a force judgement on me will be detrimental to my credit score and will be tough since my employer will now know and my bank account will be frozen.
If I settle with a payment plan, I will be forced to pay the ENTIRE balance so at this point, I am trying to come up with the money to settle the account.
Could you walk me through what the time line and realistically what will happen. I want to keep saving to pay off the settled amount in lump sum but I don't know how much time I have. I have e-mailed the attorney twice and he has not responded and I don't want to volunteer my address.
Answer: I don't have a Cap1 card that has gone into default or that I am likely to be sued for but if I did I would approach the problem far differently than you have so far.
The first thing I would have done back in April would have been to mail the law firm a dispute/validation letter. Yes, I am aware that you owe the debt and that if I were sued I too would owe the debt but that really has nothing to do with how I would react. This is no longer so much of a morality issue as it is a practical matter.
When I got served I would wait until the last day or two before the time I had to respond was up and then would file a response to the court. What my response would be would depend to some extent what state I lived in and what the rules of civil procedure might have to say about acceptable responses but here in Oklahoma and most other states I would probably use a graduated denial.
Then I would follow that immediately with a demand for interrogatories,
admissions and production of documents. If the attorney had filed an affidavit from someone I would examine it very carefully for impermissable wording, outright falsehoods or misrepresentations of any sort. I would also investigate the notary public who witnessed the affidavit to see what state they were from and then check with the secretary of state for that state to see whether or not they were a real notary or some idiot who just went out to the nearest stamp shop and ordered a rubber stamp. That happens on rare occasions and I would want to be certain that such was not true in my case.
Next I would try to find out whether or not the Plaintiff had offices
in the city and state where the notary was from. If the plaintiff did not have any offices in the city or state where the notary is from I would immediately know that some outfit like TSYS and it's so called National Attorney Network has it's fingers in the pie. I'd also check out both the affiant and the notary to see if they were on any of the notary or affiant problem lists available on line. Edleman & Combs has one such list.
If notary or affiant problems surfaced I would file a motion to quash or strike the affidavit and probably to sanction the Plaintiff's attorney for providing false and misleading information to the court.
Of course, if I did file any motions with the court I would also prepare a notice of hearing and an order of the court as well as a certificate of mailing.
Then I'd take two copies of my motion to the clerk of the court and have them both file stamped and one copy actually filed in the case. Then I'd go to the judge's office and get a date set for the hearing of my motion. Then I'd go back to the clerk's office and file the notice of hearing.
Of course, before preparing anything I would have previously went to the post office and picked up a few green cards to use for certified mailing needs. That way I could have them handy so I could include the tracking numbers on my certificate of mailings documents.
Once I had finished with the business at the court house I would then go to the post office and mail copies of all the paperwork to the plaintiff's attorney.
And by that time I would most likely already have sufficient causes of action that I could file a case against the attorney and maybe the plaintiff too in the nearest federal courthouse. If things had progressed sufficiently I would then go ahead and file my case against the defendant attorney and if possible the plaintiff in the local court case as well in federal court.
Things are a bit stickier in federal court than they are in local courts but the outcome will almost certainly be in my favor compared to the probable result of the local case.
Bill Bauer
405-684-9297
405-227-9423
RECOMMENDED READING:
How judgments work
How to deal with abusive phone calls
The Creditwrench conference calls will start this coming Friday evening at 7 P.M. Central time. It is free and open to the public. There is no cost or obligation other than what it may cost you for the phone call itself. You can join in and ask questions or just listen or whatever you want to do.
Dial-in Number: (712) 432-1601
Access code: 508548#
You might also want to visit our message forum at http://consumers.creditwrench.com to get answers to questions you need answered before next Friday night.
If you live within driving distance of Oklahoma City you can also come to our monthly meeting of the Oklahoma City Chapter of Jurisdictionary meetings. They are held on the 2nd Thursday of each month at Coit's Root Beer Stand which is located on the corner of SW 24th & Western Ave in Oklahoma City. The meetings start promptly at 7:00 P.M. and last for 2 hours. Attendees usually arrive about half an hour early so they can enjoy a good meal at Coit's Root Beer Stand. The meetings are free and open to the public and we can discuss your problems as well if you like.
We are going to start holding mock trials so that you can learn some court room procedures.
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Monday, June 02, 2008
Old Debt and Statute of limitations defenses
court document for old debt
QUESTION: I have reviewed some of the other questions online and I am still not sure what to do? A collection agency has submitted court documents to collect a debt from 1993. Ohio statute of limitations is 6 years. Would it be better to file a motion to dismiss or to request copies of the original debt or both?
ANSWER: Have you filed a response to the summons yet? If so what was the response you filed?
---------- FOLLOW-UP ----------
QUESTION: No, I haven't done anything yet.
Answer: Then that is what you need to do first of all. If I were in your situation and I have been, I would simply file a motion to dismiss with prejudice and then once the case has been dismissed I would immediately file a federal case against the attorney for misrepresenting the legal status of the debt.
It is likely that once you file a motion to dismiss with prejudice the plaintiff's lawyer will rush to the courthouse to file his own motion to dismiss because he will understand immediately that there is no possible way for him to win. He will want to dismiss without prejudice so that his client can sell or resell the debt to some other fool willing to buy such debt and that party can bring another suit if it chooses to do so or the plaintiff can simply wait a few months and file it again. That does happen and it has happened to me although the company who bought the debt after the case had been dismissed by the plaintiff's attorney realized that they couldn't hope to win a court case against me so they simply dropped the matter.
If the plaintiff dismisses his case against you rather than letting you get it dismissed with prejudice then the federal suit would be the only way you could make sure that it would never be brought up again and would be very likely to put a nice sum of cash in your pocket.
Bill Bauer
405-684-9297
405-227-9423
The Creditwrench conference calls will start this coming Friday evening at 7 P.M. Central time. It is free and open to the public. There is no cost or obligation other than what it may cost you for the phone call itself. You can join in and ask questions or just listen or whatever you want to do.
Dial-in Number: (712) 432-1601
Access code: 508548#
You might also want to visit our message forum at http://consumers.creditwrench.com to get answers to questions you need answered before next Friday night.
If you live within driving distance of Oklahoma City you can also come to our monthly meeting of the Oklahoma City Chapter of Jurisdictionary meetings. They are held on the 2nd Thursday of each month at Coit's Root Beer Stand which is located on the corner of SW 24th & Western Ave in Oklahoma City. The meetings start promptly at 7:00 P.M. and last for 2 hours. Attendees usually arrive about half an hour early so they can enjoy a good meal at Coit's Root Beer Stand. The meetings are free and open to the public and we can discuss your problems as well if you like.
We are going to start holding mock trials so that you can learn some court room procedures.
QUESTION: I have reviewed some of the other questions online and I am still not sure what to do? A collection agency has submitted court documents to collect a debt from 1993. Ohio statute of limitations is 6 years. Would it be better to file a motion to dismiss or to request copies of the original debt or both?
ANSWER: Have you filed a response to the summons yet? If so what was the response you filed?
---------- FOLLOW-UP ----------
QUESTION: No, I haven't done anything yet.
Answer: Then that is what you need to do first of all. If I were in your situation and I have been, I would simply file a motion to dismiss with prejudice and then once the case has been dismissed I would immediately file a federal case against the attorney for misrepresenting the legal status of the debt.
It is likely that once you file a motion to dismiss with prejudice the plaintiff's lawyer will rush to the courthouse to file his own motion to dismiss because he will understand immediately that there is no possible way for him to win. He will want to dismiss without prejudice so that his client can sell or resell the debt to some other fool willing to buy such debt and that party can bring another suit if it chooses to do so or the plaintiff can simply wait a few months and file it again. That does happen and it has happened to me although the company who bought the debt after the case had been dismissed by the plaintiff's attorney realized that they couldn't hope to win a court case against me so they simply dropped the matter.
If the plaintiff dismisses his case against you rather than letting you get it dismissed with prejudice then the federal suit would be the only way you could make sure that it would never be brought up again and would be very likely to put a nice sum of cash in your pocket.
Bill Bauer
405-684-9297
405-227-9423
The Creditwrench conference calls will start this coming Friday evening at 7 P.M. Central time. It is free and open to the public. There is no cost or obligation other than what it may cost you for the phone call itself. You can join in and ask questions or just listen or whatever you want to do.
Dial-in Number: (712) 432-1601
Access code: 508548#
You might also want to visit our message forum at http://consumers.creditwrench.com to get answers to questions you need answered before next Friday night.
If you live within driving distance of Oklahoma City you can also come to our monthly meeting of the Oklahoma City Chapter of Jurisdictionary meetings. They are held on the 2nd Thursday of each month at Coit's Root Beer Stand which is located on the corner of SW 24th & Western Ave in Oklahoma City. The meetings start promptly at 7:00 P.M. and last for 2 hours. Attendees usually arrive about half an hour early so they can enjoy a good meal at Coit's Root Beer Stand. The meetings are free and open to the public and we can discuss your problems as well if you like.
We are going to start holding mock trials so that you can learn some court room procedures.
Old Debt and Statute of limitations defenses
court document for old debt
QUESTION: I have reviewed some of the other questions online and I am still not sure what to do? A collection agency has submitted court documents to collect a debt from 1993. Ohio statute of limitations is 6 years. Would it be better to file a motion to dismiss or to request copies of the original debt or both?
ANSWER: Have you filed a response to the summons yet? If so what was the response you filed?
---------- FOLLOW-UP ----------
QUESTION: No, I haven't done anything yet.
Answer: Then that is what you need to do first of all. If I were in your situation and I have been, I would simply file a motion to dismiss with prejudice and then once the case has been dismissed I would immediately file a federal case against the attorney for misrepresenting the legal status of the debt.
It is likely that once you file a motion to dismiss with prejudice the plaintiff's lawyer will rush to the courthouse to file his own motion to dismiss because he will understand immediately that there is no possible way for him to win. He will want to dismiss without prejudice so that his client can sell or resell the debt to some other fool willing to buy such debt and that party can bring another suit if it chooses to do so or the plaintiff can simply wait a few months and file it again. That does happen and it has happened to me although the company who bought the debt after the case had been dismissed by the plaintiff's attorney realized that they couldn't hope to win a court case against me so they simply dropped the matter.
If the plaintiff dismisses his case against you rather than letting you get it dismissed with prejudice then the federal suit would be the only way you could make sure that it would never be brought up again and would be very likely to put a nice sum of cash in your pocket.
Bill Bauer
405-684-9297
405-227-9423
The Creditwrench conference calls will start this coming Friday evening at 7 P.M. Central time. It is free and open to the public. There is no cost or obligation other than what it may cost you for the phone call itself. You can join in and ask questions or just listen or whatever you want to do.
Dial-in Number: (712) 432-1601
Access code: 508548#
You might also want to visit our message forum at http://consumers.creditwrench.com to get answers to questions you need answered before next Friday night.
If you live within driving distance of Oklahoma City you can also come to our monthly meeting of the Oklahoma City Chapter of Jurisdictionary meetings. They are held on the 2nd Thursday of each month at Coit's Root Beer Stand which is located on the corner of SW 24th & Western Ave in Oklahoma City. The meetings start promptly at 7:00 P.M. and last for 2 hours. Attendees usually arrive about half an hour early so they can enjoy a good meal at Coit's Root Beer Stand. The meetings are free and open to the public and we can discuss your problems as well if you like.
We are going to start holding mock trials so that you can learn some court room procedures.
Would you like to speak to CEO BILL BAUER VIA LIVE VIDEO HOOKUP? Here is your chance to do that. All you need is a web cam and a mike and you can chat with me directly and live in real time. You can see me if I am at my desk and if you can't see me then probably I am away from my desk. That happens sometimes, of course.
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