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The Plaintiff in the case against me keeps serving me by “ordinary mail” when my states Rules of Civil Procedure say that I can be served personally, by certified mail, express mail, or by Residence service. The summons, the complaint, and everything with a “certificate of service” from the plaintiff has been sent by ordinary mail. Is it possible I can have these things thrown out for improper service?
Hi Zion,
If you are REALLY sure that your rules say how you can be served, and the bad guys are serving you differently, then the service might not be “effective” (might not count). But I am not familiar with the rule you are describing, and normal service during the course of a case usually does not require anything other than first class mail. So my question is, are you sure the rule you’re referring to isn’t talking about service of summons (getting the suit started usually requires more) rather than service of documents after the suit has begun? Look at the rules very carefully on this.
Hey Ken,
I still can’t get CACH to provide any evidence, thay won’t answer discovery, and refuse to validate the debt. I have a jury trial in 6 months and have no proof at all from them ( I don’t know if this is a good or bad thing ) for my case. Also in CA I can send a demand for bill of particulars because their complaint was filed under open book account, however it was also filed as an account stated (even though they did not attach statement) and I can not send BOP for accounts stated. Any opinion on sending aBOP since they did state open book account or can they avoid it since it was an account stated as well? At this point I am just sending them anything I can to make the case a burden. Thanks B
Larry
April 13, 2012 at 9:30 pm
Ken and fellow litigators (pro se, pro per)
I have a friend that is involved in a debt law suite with a major Creidit Card Company. He defaulted in 2009, a few month short of the statue of limitation, and so is not being sued. He related to me that the Credit Card company secured outside counsel to represent them, and was sueing him for the amount plus interenst and fees. My friend first tried to negotiate a settlement, but was willing to take his chances in court. The attorney poo poo on the offer made and served him with a summons. Well, now, as he answers the interrogatory, he finds that since he made an offer, he sabotaged a defense of denying the debt… What can he do… any suggestions out there..
thanks..
Hi Barry, thanks for the questions. What, specifically, is the court you are in? Is it the Limited Civil? or what? I can’t understand why you are not being permitted discovery – do you have any idea what the problem is?
As for your second question, that’s easier and more obvious. Counts are independent, so if they filed a count which gives you the right to a bill of particulars (which is an evidenciary requirement for the action, account stated, anyway), then you’ll have that right until and unless they dismiss it.
We need to figure out why you aren’t being allowed discovery, though.
Thanks Ken,
I’m in superior court limited civil, it’s not that I’m not being permited discovery by the court, but rather the plaintiff refuses to answer anything or produce documents. After a month I sent them a meet and confer letter, they responded with an objection to discovery on the grounds that my interogatories had sub-parts, and I had over 35 request including documents to be produced( a law in CA). So, I sent them the BOP and still have not received anything. I gues that’s better than them producing a smoking gun.
Hi Larry,
Debt collectors like to argue that any attempt to settle the case/account is an “admission” of the debt, but litigants make offers to settle claims all the time. When’s the last time you heard of a large corporation admitting guilt? No, they settle, and to do that they have to conduct negotiations. Many or most jurisdictions have statutes specifically prohibiting parties from attempting to use offers made in negotiation as evidence. From a practical standpoint it is just an argument that your friend admitted the debt when he tried to avoid a lengthy, distracting and risky process (i.e., lawsuit) and tried to negotiate it away. It isn’t a strong argument in my opinion. Would be glad to hear ideas from others.
Hey Ken,
Heres another one for You. I went to my case management conference and demanded a jury trial. The judge gave me dates for a mandatory settlement conference, a trial rediness conference, and a jury trial. He ordered the plaintiff’s attorney to draft and serve me with the court dates and times since I am a pro per he said. When the lawyer sent me the dates and times the first date was correct, the trial rediness conference he saide was at 2:00 instead of 8:00 am (which is false) and for the jury trial he told me the wrong court (jury trials are conducted in a nearby city). So I want to see if I can motion the court to apply sanctions for deceit, is there such a thing as that or something else similar, since he provides false info to get me to miss a court date? I was also hoping this might be a serious offense that I could file a complait with the BAR.
Hi Barry,
I think it makes sense to rewrite the questions and resend. You still seem to have time, and if the court won’t help you need to take different action.
Ken & Fellow Pro Per’s
I plan on filing a counterclaim on jdb even though I filed my answer months ago and see if the court alows it as a late filing. Do I need to state a common count or tort and if so what would be an example? Also, do I state a cause of action, and what would be an example? Thanks for any opinions.
Take a look at the answers and counterclaims sections in the document bank for samples. Not sure I know what you mean by “common count or tort,” do you mean a common law claim? A claim under the FDCPA is, technically, a statutory law (rather than “common law”) sounding basically in tort (it’s okay if that legalese doesn’t mean anything to you, it really won’t affect your case), and if you have a claim under it, that would be fine.
Hi Ken,
Is the memorandum of support letter required before sending a motion to compel request? The support letter sample is quite long and contains examples that are not relevant to the requests/objections in my case.
Hi Shawn, thanks for the question. The memo of support letter is really what we call a “good faith” letter – it’s an effort to resolve differences with the other side before bringing a motion to compel in court. Most, if not all, jurisdictions require them – the requirement would be in your local or court rules, most likely. Obviously you should NOT use parts of the sample that don’t apply to your situation. I make the sample broad so as to give you a better chance of something that does apply. Since it is unlikely the debt collector will budge, the letter is not wasted effort – it puts you half-way to the motion to compel itself.
Hi Ken:
I go for my Pre Trail Conference this Monday April 23rd, 2012
I received a notice that the judge will be doing the Pre-trail Conference and
Motion to Compel Discovery.
I hit hard and fast with Answer to Summons, Counterclaim and Discovery has all been submitted. Here in Michigan the Judge must permit Discovery so I filed a Motion to permit the discovery on an Accelererate Basis.
I am a little nervous about this pretrail conference can . I want to be ready, What can I expect? and What do I need to beware of! Will I be answered any questions that might throw me off guard.
I will be creating an article or report on going to trial on these cases very soon – within the next few days. But in the meanwhile, Shirley, I think you’re ready. Just keep reading up and watching videos to keep sharpening up. But you’ve come a long way!
Hi Ken:
I received a collection letter stating that. Because of the age of the debt , we will not sue you for it . Can this company still try to collect on this debt.
I believe statue of limitations is up on this debt.
Great question. Can they try to collect on a debt beyond the statute of limitations? Questionable – courts not fully decided last I saw. But if it’s beyond the statute of limitations, they can’t sue without violating the FDCPA. And sending negative credit references might be considered an attempt to collect the debt also forbidden by the FDCPA.
I have sent plaintiff a bill of particulars, the 10 days for response are now up. Do I have to send them a meet and confer letter now? I would rather not because it will give them more time.
You mean you would rather just file a motion to compel? I used to worry that I’d be giving them more time, too, but what I discovered is that they are not going to cooperate anyway, so I learned to send the letter – it’s just a step in the motion to compel process. And since you know they aren’t going to cooperate, you can be extremely reasonable – remember that you’re really writing it for the judge. And eventually if you can get them to give it up, you’ll have what you need to win. Plus – and you should check your rules to see if this is true for you – we had to do it. It was a requirement, but the judge did pay attention to how time was passing sometimes.
Hi Ken,
I have already submitted my good faith letter to the other side -a different format than the memo of support letter. It has been well over 10 days since they received it, and I have received no response from them. Should I send a memo of support letter now or just file the motion to compel now, since I didn’t receive a response to my good faith letter?
Thanks,
Shawn
Hi Shawn, I have a suggestion relevant to this in the Newsletter I’m sending out tonight or tomorrow a.m. Unless your motion to compel is ready to go out the door, you might wait for that. If it is ready and you’re in a hurry, you maybe should go ahead. I do want to make clear that the memo I suggest is not, in any way, the only way, and there’s no reason to keep sending them different versions of the same thing. If you’ve satisfied your jurisdiction’s requirements that’s what counts.
Hi Ken:
Ken in reading and going through the videos . I didn’t see anything that really gives more specific information about when your at your PreTrail where the judge is ruling on your Motion and maybe your Counterclaim.
When I say specific info I mean. Will I be asked certain questions by the judge, Will the plaintiff lawyer try any tricky tactics that I should be aware of . I know I have to say here! when my name is called out . Can you provide more specific information on what can happen when you at your Pretrail where the judge will be ruling. Thanks
You do mean the trial, right? If this thing is going to trial, there may well be a “pretrial conference” or the like, and that would be where the judge would rule on motions including, if there is one, a motion to dismiss either the lawsuit or counterclaim. But if so, the questions should relate to the pleadings and, possibly, what you meant – not the evidence. If there isn’t a motion to dismiss, the court should NOT rule on the counterclaim in any way. At the trial, assuming these guys have the problems with evidence I expect they do, you will have to object – probably quite often – on the basis of hearsay. Remember what hearsay is. http://yourlegallegup.com/pages/hearsay_rule. What happens there is that you make objections, and the judge rules on them either to “overrule” your objections and hear the evidence or to “sustain” the objection and not allow the evidence.
It is possible to make a pretrial “motion in limine” (rhymes with rim-delay). That is, you tell the court you think the plaintiff plans to rely on hearsay evidence, and you want to object to it before the trial begins. Then you say why their evidence is hearsay (the person saying it doesn’t know from first-hand experience the things he’s testifying to)(the records they’re using were made out of court and not properly “authenticated” by someone who knows from first-hand experience the things included in the evidence). Read my articles on hearsay (cited above).
All the debt collector’s tricks usually focus on getting those records into evidence. But they might also ask you to admit owing the debt (at any point) or that the records are accurate or something like that. Any admission along those lines, at any time at all, could lose the case for you.
One last thing. If it’s a debt collector, make sure that they have complete proof of ownership of the debt. If they have a bill of sale, does it refer specifically to your account? Or does it supposedly have an exhibit which supposedly mentions your account? If so, does it? Look very carefully, because for some reason debt collectors often don’t have this information.
Hey Ken,
I understand that discovery and Bill of particulars should be sent and to follow up with meet & confer letter & possible phone call to their attorney when they don’t respond ( to be prepared to motion the Court to compel). Instead of filing a motion to compel, can’t I file a motion to strike anything they later produce as inadmisable (since they did not produce it in discovery or the BOP. (CA LAW). Or can there be something like a “motion to strike any evidence as inadmisable”? Thanks
Entering the realm of the unpredictable, Barry. If you haven’t produced materials, you can’t feel comfortable when you try to use them at trial – some judges will slam you. But if you haven’t filed a motion to compel, you can’t feel comfortable, because some judges will let it in – they’ll say you had a responsibility to pursue your discovery and failing to do so waived your right to it. Especially considering that one of our strategies is to make the other side spend time on the fight, I always suggest that you follow up with the motion to compel. Even if you lose the motion, it strengthens the possibility that the judge will not let in the undisclosed evidence. Does that make sense?
That makes perfect sense, just never thought of it that way. Especially making them spend time on the fight. Thanks Ken
Hi Ken:
Could you please give some circumstances or situations where the judge has rule against The Motion to Compel regarding the Plaintiff ( Debt Collector).
Thanks .
I will look for some, although I guess this is no longer an issue for you! But it may help others.
Ken,
I have a case where the Plaintiff is trying to take me to mandatory arbitration. I still can demand trial by jury. I am trying to decide which way to go but am concerned about the rules of evidence in arbitration vs at trial. Is it easier for the plaintiff to get hearsay evidence admitted at arbitration?
> In one way the rules of evidence seem more liberal in another just as
> strict or more so;
>
>From the Rules of Mandatory Arbitration.
>
> “Rules of evidence, Generally. The extent to which the rules of evidence
> will be applied shall be determined in the exercise of discretion of the
> arbitrator. The rules of evidence, to the extent determined by
> the arbitrator to be applicable, should be liberally construed in order to
> promote justice. The parties should stipulate to the admission of
> evidence when there is no genuine issue as to its relevance or
> authenticity.” also….
> “Certain documents presumed admissible. The documents listed below
> (bills, records, etc) if relevant, are presumed admissible at an
> arbitration hearing, but only if the party offering the document serves on all parties a notice, accompanied by a copy of the document and the name, address and telephone number of its author or maker, at least 14 days prior to the hearing.”
>
>The documents that the Plaintiff filed as evidence before my SJ hearing is an unsigned copy of a credit card agreement that was allegedly in effect at
the time the alleged account defaulted, and incomplete photo copies of account statements supported by an affidavit. In the affidavit the affiant attest to the information that “resides on the Citibank computer system as of the date that the account was referred for collection.”
>
>The affiant does not have first hand knowledge and can’t attest to the accuracy or validity of the information provided to her by Citibank.
>
To me it seems that the unauthenticated evidence including the affidavit
> attesting to the wrong thing is very weak if not completely inadmissible
> as hearsay. But the judges are more and more willing to let it slide to
> expedite their case load (they don’t like Pro Se’s fighting back).
>
Thanks!
That is my great concern here. Plus the lack of rights to appeal – could be a recipe for disaster. And maybe not, of course, but the waffling language about the rules of evidence would worry me very much. A firm interpretation of the rules of evidence, and particularly hearsay, is one of your strongest weapons. The arbitration rules leave that in doubt, as I read them. You and Barry have the same issue/concerns – take a look at our comments back and forth for more.
Ken,
Of the three Discovery methods,
Production
Admissions
Interrogatories
Which need to answered under oath?
Is this a Federal rule that all states adhere to or can it vary from state to state?
Thanks!
Not a federal rule that states adhere to – rules of civil procedure are always adopted by each jurisdiction. So federal rules for federal courts, and each state has its own. Of course there is a very great similarity, and the fed rules have been a sort of magnet pulling the states towards them. As far as I know, only interrogatories need to be sworn. I am not aware of any jurisdiction in which responses to requests for admissions or documents need to be sworn. If they do, your rules will explicitly say so.
I’m in CA , Code of Civil Procedure 2033.210(a) states ” The party to whom requests for admission have been directed shall respond in writing under oath seperately to each request”. Not that they will answer them anyway.
Ha. Learn something new every day. Okay – check your rules will be my answer from now on. But also check to see what an admission/denial means and what the penalty for denial of a request you should admit – I doubt it makes sense to admit any but the most obvious. Thanks for input. I think John is in CA too, so this should be helpful to him.
Hey Ken,
I finally got something from the BOP I served after a meet and confer letter. What I got was the original balance and a list of payments month after month. It resembles a bunch of credit card bill statements with the bottom part perferated to remove and send with payment. It shows the previous paymemt and an ac number. They sent one page per month from 1-11-09 thru 5-11-10. There is no B of A logo & it was not the statement they would have sent. It doses not show any checks or signatures anywhere and it was verified by the attorny for the plaintiff. It does not show how they got the original amount.
It looks a little intimidating, but I could have made the same thing for anyone else on my computer.
The question is how damaging is this and what to do next?
Sounds like fraud. Now the question is, how do you prove the documents are bogus? If you can nail them down on that, you can do real damage. You can ask discovery about previous discovery: “admit that the documents you sent, labeled “X” were not generated by [creditor]” Interrogatory: “who created statements…” etc. Verified by the attorney for plaintiff? check your rules of civil procedure regarding attorney conduct and, particularly, conflict of interest and “lawyer as witness.” Attorney verifications may be violation of legal ethics (and hence, also, of the FDCPA).
Looking good!
Thanks Ken,
Good answer. I will send my second set of discovery, but I figure I should send a motion to exclude evidence as well. Maybe under “hearsay” and “improper verification”, I don’t think the hearsay will work, any suggestions?
There’s no real rush, I think. Better to get the facts first, usually. A motion to exclude only relates to trial. But that’s a question of strategy, so I leave it to your judgment.
Ken-My question is on a motion. A motion to strike an affidavit of debt attached to plaintiffs motion for default. I put in a Motion to Strike plaintiff’s afadavit, then realized I did not have enough information in my motion. I have court for that-soon..Now Can I ammend a motion, if yes, how? If not than what do I do? So far I put in my Answers with counterclaim, then I skipped over the discovery, ( I didn’t realize that part came next), put the motion to strike the affadavit, than I read you can’t just go striking things without discovery. Did I mess up? I served discovery today. Anything you can tell me would be appreciated.
Hi Hol,
I’m just a little confused here. Sometimes an affidavit is required to support a default judgment (it is in MO), but if you are attacking the default itself, you would use a motion to vacate the default. Attacking the affidavit might be a part of that, but the main aspects of a motion to default are also their own things. Since you are a member, go check the motion to default materials in the membership area to see what I mean. I think the short answer to your question, though, is that you will be able to argue what you want to in attacking the default motion/judgment. It makes sense to put it in writing, too, as a memo of the arguments you made. If I haven’t quite grasped your situation, could you be more specific (still without revealing personal or confidential info). I’ll be here tomorrow to read – will be out of office rest of day today.
Ken,
Do you think it’s possible (or worth a try) to file a counterclaim to an answer that was filed over four months ago? I would rather not amend my answer.
Thanks
Yes, I think it is possible and worth a try – especially if you don’t already have one. Why would you rather not amend?
In my area we have to file a motion to amend and go to court on it, and I have a motion to deem admissions admitted coming up already. I figured it would take more time and possibly irritate the Judge. I have been thinking maybe I should amend however.
Remember that part of our strategy is (legitimately) to increase the irritation and level of commitment of the debt collectors. Plus, courts are required to “liberally permit” amendment of lawsuits. And remember why I say that counterclaims are important.
Does anyone know (in California) if the jdb sues on an “account stated” if an example of the account stated needs to be included in the complaint?
Hi Ken:
I received a letter from a attorney for a Debt Collector. I sent a certified letter stating that I was disputing the debt and I requested Debt Validation and I also request :
*The detailed calculation of the balance you say is owed (Copies of Account Statements showing balances)
*Copies of the signed original agreement showing this account is Shirley Proctor’s obligation
*Identify every document which the account was transferred to or acquired by you and state whether the transfer was by assignment or some other means. Identify every individual employed by the Original Creditor who had direct or supervisory authority over the Account (or over the department responsible for collecting on the Account) before it was assigned, transferred and/or sold to you.
*State whether you have a copy of any contract that contains Shirley Proctor signature on it. If your answer is “no”
*State whether you have a copy of Any document that contains Shirley Proctor’s signature and, if so, identify each
Document.
*Proof of LVNV Funding , LLC is license to collect debts in the state of Michigan, as well as licensing numbers and your Registered Agent and Verification of Original creditor.
The atttorney responded with a Debt Validation Form just showing the original creditor, balance and stating that it was purchased by the debt collector.
The attorney has not actually validated the debt. The attorney stated “I am hopeful that this information will refresh your memory as to this debt. Is there another letter I can send the attorney. I am trying to stop a suit.
thanks
Does it say anything about contacting the original creditor? That is, does the response say they did?
Hey Ken,
I have a hearing coming up in 10 days for a motion to deem admissions admitted and sanctions to plaintiff for discovery abuse. I have just received their objection even though I filed and served the motion on them with 22 days notice. Should I draft a response to their objection and get it to the court clerk asap or just go to the motion trial and present my points and battle it out at there.
Judgment call. If you have something you want on the record, you need to put it in writing (speaking practically). You have to think about what the judge wants, too. Will you get a better hearing if you give it in writing before? Do you risk anything by tipping your hand any more to the other side? Those are the questions.
hi ken
The response was a Debt Validation Form
showing account no, Identity of original Creditor, Name of Debtor, Balance of Account
Debt was purchased.
No. the response says nothing about contacting the origanal creditor.
This is from the attorney for the debt collector.
Ken this does not valid the debt in anyway. Can I send a letter stating this is unacceptable I want Proof the Debt is mine.
I think the attorneys are in violation.
I’m inclined to believe you are right about it not being enough. I think there is a requirement of checking with the OC, and of course you can get back to him (you can always do that), but don’t know whether that serves your purposes at this point. Judgment call.
Hi Ken:
Can the attorneys for the Debt Collector still Sue you . When the Debt has not been Validated by the persons request during the 3o days you have to dispute the debt. What are the next steps with the Debt collector/attorney.
Thanks shirley
As usual, Shirley, an excellent question. Not clear. Some courts have said that filing suit was not “collection activity” but was, instead, legal activity. Most courts have said, though, that filing suit before validation is collection activity. Has that happened? or are you just still getting ready?
Hi Ken,
I’ve been looking for a law or statute I can counter sue jdb on, for fraud or deceptive documents, that is not on the FDCPA, and works in CA. Any Suggestions? Thanks
Working on it.
Thanks Ken
Hi Ken
Does the original creditor writeing-off the debt have any bearing on (their)
the original creditors right to collect the debt. Can they take an insurance settlement on a debt, or accept a tax deduction for a loss, and then collect at full value against me.
This is an excellent question. Writing off the debt is a tax accounting move that has no impact on ownership or collection rights. However, what often occurs with insurance is what is called “subrogation,” which is a transfer of the rights to the debt or its proceeds to the insurance company. While I doubt the debt collectors don’t have this covered via contract (leaving the original creditor the right to sell, etc.), it is possible they don’t, and it’s worth exploring in the discovery process. And all the more so because debt collectors hate to answer questions like that.
Ken,
I have decided to amend my answer and add counterclaims. My case is aging and the plaintiff knows I am fighting. The question is should I write them a letter first advising them that I will amend answer and counter sue if they don’t drop the lawsuit, or just surprise them with the counterclaim? Thanks Ken
My experience with these things suggests that attempting to negotiate based on something you are saying you will do does not work. They seem to think it is an empty or desperate threat – even if you have a long history of following through. But if you do it, they may eventually get the bright idea that you would drop it if they agreed to settle. It’s just the way they work as far as I can tell. May have something to do with what the lawyer is telling their client.
Ken,
How late is too late to file a counter claim. I have a case where I filed my answer and defenses almost two years ago. The attorney firm let it sit for a year and a half before the took me to summary judgment (which they lost). Thanks!
“Too late” is when the judge says it is, although you may have statute of limitations problems, and specially if you don’t try it as a counterclaim. But if you’re going to do it, you just have to do it and let the chips fall where they may. What do you have to lose?
Hi Ken :
The attorney has not filed suit yet. The attorney just sent a settlement letter in attempt to collect the debt. I in return disputed the debt requested validation. The attorney in turn sent a validation form showing account # , Orig Cred, Debtor name, address , bal and stating debt was purchased. In my attempt to dispute it is my hope a suit is not filed. I am responding back to the attorney stating that this Debt Validation Form is “Unacceptable.
I am requesting the Debt collector provide Proof the that is indeed mine. Request Copies of orig signed application, and credit statements showing I indeed owe the amount,
Hopefully this will stop it . It is the same attorney firm I dealt with before on another account and got my dismissal.
Ken,
I received a Subpoena Duces Tecum from a law firm. The are requesting my Credit Union to give them my account records for the last 7 years. If I read the rules right I have 14 days to object or is it that the C U will have to object?
Now the particular C U they are going to subpoena will not show any payments to the original creditor but I would like to object anyway. Is it enough just to object to it as an invasion of privacy? How do I find other reasons for my objection?
Thanks!
Requests for discovery of any sort must seek information that is “reasonably calculated to lead to the discovery of admissible evidence. That means it has to be relevant to an issue in the case. This limitation is built right into the rules of discovery. The rules may also mention that the information sought must be “not privileged,” and some privileges may be mentioned in the rule, but others are questions of state law. If they make a request that seeks information you and your spouse communicated, you’d look up “husband wife communications” or something like that to see if your state has that privilege. All states have an attorney-client privilege.
Beyond those obvious objections, though, are the objections as to the form of the questions (“vague, confusing” or the like) and then to the general burdensomeness of the requests – “unduly burdensome, oppressive.” Look at the samples in the membership pages for more ideas.
Don’t look for the CU to object. You will have to do it by means of a “Motion to Quash.” That’s a motion where you ask the judge to nix the subpoena because it is objectionable.
Ken,
As to making a late counter claim, does that have to be filed as an amended Answer and Affirmative Defense, or just a claim similar to an original complaint?
Thanks!
Sorry about the delay in responding. Your counterclaim always, as far as I know, has to be made as part of an amended answer, but you could probably amend “by interlineation,” which means you say you incorporate your previous answer and simply add the following counterclaim. Probably better just to do the whole thing as an amended answer and counterclaim, though – that keeps everything together in one document.
I just received a summons and complaint from a law firm representing a credit card company.I did not receive a prior letter before receiving the summons. Is this proper procedure and there is no indication on the summons that they are debt collectors. Are they working for the credit card company? how can I tell if they are? Lyndon
Okay. So this is going to depend on who is suing you. If you are being sued in the name of the original creditor (Cap One, Discover, etc.), then the FDCPA may not apply, although you want to know the history of the debt and whether anyone else ever owned it. If the company suing you is not the original creditor, then their petition may have already opened up a claim for you under the FDCPA because it confuses you as to who is suing you. Tell me a little more about the named plaintiff: original creditor or debt collector – and remember that you should not be telling me things here that you want to keep confidential. We can talk about general issues here, but I can’t give you legal advice.
I googled the company that filed the lawsuit and information shows that they have been a debt collector in the past. I could just ask them in answer to their suit.
Well, knowing they have been a debt collector in the past can be helpful, but you can’t really ask them questions in your Answer. You can make allegations in a counterclaim. Or you can serve interrogatories in discovery.
Ken,
About the motion to Quash. Does that have to be noted for a hearing or does the judge just read it and make a ruling?
Thanks!
You should never expect a judge to read and make a ruling. It happens every so often, but you are always better off assuming that they won’t. That means you have to schedule and call the hearing. You would likely want to serve a copy of your motion to quash on both the debt collector and the person being subpoenaed.
Ken,
Do you think a Federal suit against the OC would be stronger then just a counter claim. I am trying to decide which is the best way to go.
I am going through your forms and find Missouri law referenced, but I need to put Minnesota law codes into the form. How do I get the Minnesota code that matches the Missouri code you have referenced?
You have to do a search for the laws – they aren’t always the same for different jurisdictions.
Hi Ken, to update you. received mtion for summary judgement on May 25. NHad received summons in November 2011. Had attorney answer the summons. Nothing happened after Nov until summary Judgement. Should I do discovery immediately or just writ a motion for summary judgement. What can I do if plaintiff asks the court to corresponde at trial by telephone?
Actually I don’t understand much of this. You do need to do discovery, and no reason to delay. I don’t understand the last part about asking the court to correspond at trial.
Hey Ken,
I have a jury trial coming up, I’m not getting anywhere with discovery, but I do have a list of bogus credit card statements they produced from the B.O.P. and I got them to answer some admissions with a motion to compel.
I’m considering filing a motion for summary judgement. If I do, can they object to it and file their own summary judgement, and if so is it possible to lose the whole case without even going to the jury trial?
Yes, they can file a motion for summary judgment in response to your motion, and yes you could lose. But this is not news – it’s the way it has always been.
Hi Ken,
As a defendant in a Jury trial, can I call “myself” as a witness as long as I direct the questions to myself just like I would with any other witness?
Yes – but you need to talk to the judge about how this is going to take place.
Hey Ken,
All I got from Plaintiff in response to a Bill of Particulars was 14 monthly card statements, which I can file a motion to strike. Should I also file a motion to exclude any further evidence to the B.OP, or should the motion be to compel further B.O.P.? Also is 3-4 months before trial soon for these motions?
Did they include all the charges for which the debt collector is trying to collect? If not, you probably want to move for a “further bill of particulars.”
Ken,
they did not include the charges and how they came up with the amount. I can motion for further Bill of Particulars, but my concern is that they may come up with more evidence making my case worse. At the time it looks like they may go to trial with just the statements, if I motion for further B.O.P they may bring in much more evidence.
This is the wrong way to think about it. If they can get the stuff, they can win. But right now you don’t know one way or the other. You go for the further bill of particulars to force them to show you what they’ve got or can get. And to close the door on that process. You have to start with the bill of particulars demand. If they respond (more or less at all) to that, you have to seek a further bill of particulars before you can try to exclude any further evidence – skip the further bill of particulars and you let them off the hook and leave the door open. Here’s the whole article.
Then that is what I will do-motion to compel further bill of particulars. Thanks Ken, I was just about to file a motion to exclude, and file it with a motion to strike the credit card statements as evidence at the same time.
Now when I file the motion for further bop should I file the motion to exclude evidence (credit card statements) at the same time or should I wait?
Ken, The debt collectors are using the account statements as their sole evidence for the summary judgement. They state that they did not purchase the account. In another statement they say that I have no proof that the account was assigned. This debt collector has been known to purchase many accounts that have been charged off. Any ideas on how to proceed. I am about 3 days from the hearing on this I have done all the discovery. I have also objected to their summary judgement and of course they state that I do not have any evidence against them .
Eventually, if a lawsuit has been brought against you in the name of the original creditor and if the lawyers representing them keep saying it, the court will probably believe them. No reason not to, is there? Just because a law firm represents creditors and also sometimes acts as a junk debt buyer, you should not fixate on an attack against them as debt collectors. It isn’t actually rare for law firms to do this. Instead, you need to find a weakness – look at their affidavits and see if they fully comply with the rules of civil procedure regarding them. See if they have EVERY base covered: taken ownership as given in this situation, have they accounted for every dollar they’re seeking? Have they provided all terms and conditions that bear on that? Because if they haven’t, they haven’t established their case. Have they established that the account was yours? Look at every part of their case. It is possible for them to have it all – and to win fairly – and this is more likely in an original creditor situation – but it’s rare.
The debt collector is stating that they donot need a signed contract because by using the credit card the agreement creates a enforceable contract. So statements are all they need. Any ideas?
Collector is “stating”? What does that mean? Are you saying they are objecting to something and refusing to answer an interrogatory on that basis? or responding to an allegation or argument? In the law, people never “state” anything – it’s always an objection or an argument for or against doing something. Exactly what they are doing will make a large difference in how you need to respond.
Ken,
I have a copy of the forward flows showing the details of BofA’s sale of debts to CACH, where they say they can’t validate the debts. It came from the American Banker magazine, and it is public record from a case (I don’t know the name & can’t find the case) I plan to use parts of it in a motion to exclude evidence, but how can I get this admitted as evidence, or can it be done?
This is a Statute of limitations question. I’m in DC and the statute of limitations is three years. The plaintiff submitted in their summons my credit card statement with the dates of 11/25/09- 11/24/09. There are no charges on the statement. It reflects the principal amount, late charge and finance charges. There are no purchases or anything. Nor is their payment information. I’m going to argue that submitting just this one statement doesn’t prove that the balance is accurate. I also need to know when the statute of limitations begins ticking? Does it begin the last time you’ve charged something or your last payment?
DC Code doesn’t specify. The code states:
DC code12-301. Limitation of time for bringing actions. (7) on a simple contract, express or implied — 3 years.
Again, nothing specific.
Help.
Lastly, the company that served me the summons in Washington, DC has to have a business license. They are incorporated but they have no license. Should I bring this up?
If you’re saying they have to have a business licence to sue you and they don’t, you should definitely bring it up. Not sure whether that needs to be by amending answer and adding as affirmative defense, by motion to dismiss, or how, though.
Regarding the statute of limitations, I would guess you are talking about from date of default, but could be last payment. Can’t see why it would be from date of last use, except that last use might toll (stop) the statute somehow. Do you think the statute of limitations has run? sounds like it might have. If so, that’s also probably an affirmative defense.
And the thing about affirmative defenses is that you must plead and prove them. You might also attack it as part of their case, but I wouldn’t wait.
Thanks Ken! This is excellent. In regards to the company that served me the summons, they are a legal support services company. So, they are separate from the law firm that’s suing me.
However, when I checked them out, they do not have a business license. In DC you must incorporate first then get your business license. So, they’re incorporated but have no business license. What I “think” this company may have done was got incorporated, then got there business license and either let it lapse or didn’t bother to get it at all. Either way, there is no record of them having a license only being incorporated. So, I’m going to bring that up. Hopefully this will have some kind of impact on the case.
You should maybe seek to have the case dismissed based on faulty and deceptive service. The problem is that by answering you may have waived the right to challenge service. That’s why I suggest your attack also talk about the deceptive nature of it.
Ken,
The plaintiff answered a bill of particulars with 14 monthly credit card statements, verified by the lawyer. I plan on filing a motion in limine to exclude the evidence. I have a two jury trial with a case management conference 1 week before the trial. Should I file the motion to strike at the cmc or wait until the first day of trial. I would like to file it at the cmc but it might give them just enough time to have someone else verify it.
(that’s supposed to say two day jury trial)
Sorry I didn’t see this earlier. You need to file a motion for further bill of particulars before you file a motion to exclude. Go to this link: https://yourlegallegup.com/pages/Bill_of_Particulars
You have to follow the rules very explicitly. I will have a bill of particulars product up by late this week if you need it. It’s almost done – but my article should help you do it yourself if you want to. Remember, though – you have to follow the rules on this because the courts generally do not like to exclude evidence.
Ken,
Can you explain the doctrine of Estoppel. When, where and how it could be used?
Thanks
Thanks for the suggestion. I need an article on the concept at my site, too.
Very basically, “estoppel” means “prevention.” You can be estopped from doing lots of things for lots of reasons, but the issue tends to come up in mainly two ways: estoppel for some sort of moral reason (called “unclean hands”); or “collateral estoppel.”
Unclean hands means you’re asking the court to do something to lock in an advantage you obtained immorally. So, for example, you may have heard that if you kill someone you are not allowed to inherit from them. In debt law, if you prevent someone from paying, say, you might be estopped from suing them for non-payment. Happens a lot in mortgage foreclosure. For more, you can look at this article I wrote: http://ezinearticles.com/?Using-the-Defense-of-Unclean-Hands-in-Debt-Litigation&id=5907434
Collateral estoppel is also called “issue preclusion,” and that means, basically, that you aren’t allowed to relitigate an issue that a court has already considered and decided. Or in some cases where you should have brought up the issue so a court could consider and decide. Can’t find a link, but I’ve written about this before and will have an article up for you within the next few days. Search for “estoppel” on my site after, say, Wednesday. But it could be up sooner.
On a motion to compel, if you are ordered to produce 10 years of court records for muliple bank accounts and 10 years of cancelled checks, is the judge asking just for just what is in your personal possession or is he expecting you go to those banks and retreive copies of that info? Can an order like that be appealed?
John, the order can be appealed – or, actually, it’s called requesting a “writ of prohibition” around here. That would be a place to start – not sure what California allows, but I’m sure there is some review permitted. Remember also that you can only be ordered to provide what you actually have or control. You might be said to control the banks’ records, but expense here could be significant, so you might be able to authorize the bank to provide the records at the plaintiff’s costs.
It is an extreme order. Is the judge being equally helpful to you when you’re asking for stuff?
So I am defending myself in a Breach of Contract allegation and this morning was the trial. I had a pending ruling on a grant for a motion to compel. After presenting the case the judge ended on “I will take this under advisement and will rule on it in two weeks” is this common?
Really don’t know what to make of a motion to compel without a ruling – think you have to treat it as denied by operation of law (since the trial cut off your right to the materials). Odd. In any event, if there was no ruling on the motion, and there’s no judgment, you should keep arguing it. And if there is a judgment, and some of the materials you sought might have made a difference, it’s an issue for appeal that you should probably win.
Do you think it would be of any use to site out of state case law?
Good question, as usual. Yes, it could help. “Authority” in case law generally goes like this: a clear law (statute) speaking directly to the question (i.e., some of the enumerated and specified actions that violate the FDCPA); an opinion by a court that has review authority over your court and case – these are binding on your court unless you can show your case is different (“distinguish” it); an opinion by another court from your state; an opinion by a court in another jurisdiction applying your state’s law; an opinion by a court in a different jurisdiction applying the same law (as in, a court from Oregon analyzing the same part of the FDCPA; an opinion by a court in another jurisdiction applying a similar law…
Ken, let me get a bit more into the particulars on my question regarding the doctrine of Estoppel. Here in Washington we have a law governing collection agencies, the Washington Collection Agency Act (WCAA). It says in several places, “That upon written request of the debtor, the licensee must make a reasonable effort to obtain this information or cease efforts to collect on the debt until this information is provided.” (Emph. Added) This wording covers several subjects, and covers much the same as the FDCPA. We site both WCAA and FDCPA in our demand letters.
Once the demand letter has been sent to the collection agency, and until they respond in particular with the information demanded, would the doctrine of Estoppel apply in such a way that the court should not allow them to further their litigation against me until such time that they provide the particular information demanded? Would they not be in violation of the law to continue? Why are the courts allowing them to do so? I do see how this fits “unclean hands” as you discuss. How do we get the courts to recognize that they are looking the other way while the plaintiff is breaking the law to continue?
This is a really great question. Okay, estoppel is not actually what you need here. You need to “enjoin” them or simply to move for “stay or dismissal.” Moving for stay or dismissal is probably the way to go: You ask for verification, and they file suit without verifying, and you just move to dismiss on the grounds that the Act in question does not permit further action until verification has occurred. You ask the court to “stay” (halt) the suit until verification has taken place, or to dismiss it altogether as an action prohibited by law.
This would be a motion to dismiss – best filed even before answering the petition, but it should be effective even if you’ve already answered I would think. I don’t really know how often debt collectors proceed in the face of a request for verification. Are you aware of any statistics?
Another way you could consider is a suit to enjoin. The thing about a suit to enjoin is that it should be brought in a different court – preferably one of higher jurisdiction. So, for example, you could file a Suit to Enjoin in federal court asking the federal court to “enjoin” (prohibit) any further action in the state court. You could maybe do the same thing in a circuit court about an action brought in small claims court (although I’m not totally sure about this). If you live in one state and are sued on a debt in another one, you could file a suit to enjoin in your home state based on the argument that the FDCPA requires lawsuits to be brought in the home jurisdiction of the debtor. When a motion to dismiss is available, though, a suit to enjoin is probably more expensive and difficult than it’s worth. However – if the state is typically not granting such motions, you might go to federal court to get a fairer reading of the statute.
Ken,
Based on the previous question and your answer, if my motion to dismiss is denied in error by the lower court. Is that deniel reviewable or appealable to a higher court or would I have to whait untill after a summary judgment loss or trial loss to appeal that error.
An acquaintance of mine lost a summary judgment at the District court level. The Judge told him that the summary judgment was granted because he didn’t file an affidavit in support of his denials. He didn’t know that he needed to.
Can he file an amended opposition to the summary judgment with an affidavit in the district court? Can he appeal to the higher court and ask the judgment to be vacated? There must be a remedy for his lack of knowledge.
You know, I’m always trying to get people to realize that motions for summary judgment are decided on whether or not the court sees “genuine issues of material fact.” In plain English, where you show that you have evidence that can’t be immediately ignored on issues that would be important to whether or not the court grants a motion for summary judgment. Take a look at: https://yourlegallegup.com/pages/motion_for_summary_judgment or Responding to a Motion for Summary Judgment. Your friend fell victim to the tendency of debt defendants not to do that – but instead to argue from facts they assume the court should know.
All may not be lost. Your friend must immediately file a motion to reconsider, explaining that he did not realize the need for an affidavit, attaching the affidavit or other actual evidence in support of his position, and asking the court to reconsider in order to render actual, substantial justice. In Missouri, at least, judgments are not final until some time has passed (30 days), and the court would be free to reconsider and rule as you requested. Don’t know about your friend’s jurisdiction. Time will certainly be of the essence here, though. In Missouri, if you miss the 30-day deadline the court can’t do anything – the judgment leaves its hands forever. If your friend has an opportunity to move to reconsider, he should absolutely make sure not to miss the deadline.
Hey Ken,
I filed a motion to compel discovery, the plaintiff filed an opposition to the motion & asked the the court to sanction me $925, the court ruled in my favor. I’m in CA superior court limited civil division. The question is ( I know I read somewhere it could be done but now I can’t find it) Since the plaintiff asked for sanctions and then lost the ruling, can I request that the sanctions be awarded to me?
You can always ask. But unless the rules of your jurisdiction provide otherwise, the fact that they asked and were refused doesn’t make their request sanctionable. In most courts, sanctions exist to punish clearly meritless or “frivolous” activity – although in some cases the right to attorney fees is much, much less rigorous. You’d have to check your rules. The real question is, did you get any of the discovery you sought? or where are you left in that process. Law cases are very often all about “the grind.” And you have to keep grinding away – keep your eyes on the ball.
Jury trial in 2 months, motion to compel discovery granted-plaintiff to answer within 30 days, bill of particulars produced 14 monthly credit card statements-verified by attorney & no accounting for balance, so i figured lack of standing-motion to strike evidence. Question: When do I strike, now, or motion in limine at my trial readiness conference 1 week before trial? If I file a noticed motion here I have to give over 1 month notice to the plaintiff.
Actually I meant lack of foundation (not standing)
What you really need to do is follow up the bill of particulars with a motion for further bill of particulars. I don’t think you should wait on that – although if you want to use my new product you may have to wait a few days for me to bring it on site. Meantime, though, you could probably figure it out yourself. If you wait till trial and they show up with more, you may not be able to get it excluded (at least not automatically).
I did file a motion for further bill of particulars, the plaintiff objected to it saying that was their complete response to the bop, and that they had no other credit card statements and that they would not introduce anymore at trial, so on that grounds the judge denied it. I have been looking at as having the same effect as if the judge granted the motion for further bill of particulars and the plaintiff produced nothing more. I figure they will produce bill of sale and some affidavits at some point but think I may have a foundation issue on the credit card statements
You up for trying a motion for summary judgment? If they’re on record as having nothing but the things you mention, maybe they don’t have enough to win? Might be a good time to put them to the test. It would give you a chance to inflict damage on them and to evaluate exactly what their best arguments will be at trial.
I’m up for anything but a settlement, I never thought they had what they need to win. They didn’t show the accounting for the total due and now they are on record saying they won’t produce more credit card statements. I planned on bringing a motion for summary judgement with me to the trial readiness conference, with a motion to exclude the statements for motions in limine. Now I don’t know if I should wait for the trial readiness conference or file something sooner. I do have a mandatory settlement conference in 1 month, and they have 1 month to answer the discover the judge ordered. Also if I don’t file the motions in limine I have to give them over 30 days notice, and I’m not sure how many days before trial count as “in limine”
Ken,
Is there a remedy if someone fails to respond to requests for admissions timely? A friend of mine was 2 weeks late and the plaintiff filed for summary judgment using the fact that they didn’t answer timely as an argument. This person works full time and cares for a disabled child.
Hi John,
Great question, as usual. Here’s the link. https://yourlegallegup.com/pages/Failing_to_Respond_to_Requests_for_Admissions_on_Time
Ken,
If my court is a limited civil , the complaint only had a dunning letter attached and the plaintiff claims to be an assignee is it possible to dismiss due to lack of subject matter jurisdiction?
If your claim is that, for some reason, the court lacks jurisdiction over you, a motion to dismiss works. But in this case the question seems to be of evidence. Can they prove the debt is theirs, and that it is yours, etc. Unless there’s a pleading requirement for them to put all that in the petition? If so, motion to dismiss okay – if not, maybe a motion for summary judgment if you’ve gone far enough in discovery to be able to say that that is all the evidence they have or can get.
If the plaintiff serves me an affidavit in lieu of live testimony and I subpoena the affiant will I have to pay them for the fight, and time for 1 day, and expenses?
Don’t know. It varies by jurisdiction. If you subpoena the affiant, they may file a motion to quash the subpoena on the grounds that it’s too expensive, etc. Of course your argument is that they are suing people without much money, and if they have their record-keepers far away they are in effect preventing poor defendants from defending themselves. It’s a strong argument and should win, but it will depend on the specific judge most likely. It’s a good topic for a little research – I wouldn’t just give it up, though. I think you should win on this question.
The plaintiff has provided what they call an”affidavit of sale & certification of debt” not a bill of sale. It has no signatures from the bank or the plaintiff showing a sale or assignment, but it does have someone who is a bank officer with personal knoweledge. It has the account # and she is sworn (but not under penalty of perjury). I need to decide if its still worth fighting, its possible the plaintiff won’t fly out to my state for a jury trial, and i am going to try to file a motion in limine to strike the affidavite. Not sure if I should settle, I would rather fight.
Well, if they make a real offer, I suppose you have to consider it, but I do like your thinking here.
Hey Ken,
never mind this last question here, I don’t know what I was thinking, just temporarily rattled I guess. they have now brought in even more evidence, but I am going to fight them all the way. Thanks for the help.
Update:
The plaintiff finally dismissed the case with prejudice! 11 months of fighting them paid off, 2 sets of discovery, 1 bill of particulars, 2 motions to compel, 6 motions in limine to exclude evidence, 1 objection to a declaration in lieu of direct testimony and a subpoena. I think they would have quit before the motions in limine and subpoena if I had called them sooner, but either way its over.
Congratulations. You totally earned it. How would you say this entire experience has changed your view of the legal and debt collection business?
Ken,
I have always been interested in the legal field, but had no idea you can fight so much of the case on paper. As for as the debt collection industry goes I am surprised to see how out of control they really are, and the low class people involved. I was very glad to learn that it is true that corrupt courts can be controlled, otherwise I would have been in trouble. Thanks for the help.
I’m being sued by a debt collector and was served yesterday.
Prior to being served the debt collections company had been sending me regular communications via mail which was titled as “Notice of Outstanding Bench Warrant” Then states that “The X county court has issued a warrant for my arrest because you failed to comply with one or more court orders. The warrant will remain outstanding until you resolve the contempt of court issue or surrender and post bond. If you choose to contact our office and make satisfactory payment arrangements, we will ask the judge to refrain from punishing you for contempt.”
I checked using online tools to run a check to see if there were any warrants out for my arrest and there are not. I also had a background check run by my states Bureau of Investigation, which came back clean.
To me this seems to be a violation of FDCPA. Apparently my state has their own CFDCPA. I’m not sure which to use, or both.
Also and perhaps more importantly I was considering filing a Motion to Dismiss, based on the above letters I’d received, prior to Answering. And probably a Discovery. Is this when I’d want to do this or would it be better under a counterclaim when I answer? Or should I answer with a counterclaim.
I pulled the ones that I think apply and are as follows:
12-14-107. False or misleading representations.
(1) A debt collector or collection agency shall not use any false, deceptive, or misleading representation or means in connection with the collection of any debt, including, but not limited to, the following conduct:
(a) The false representation or implication that the debt collector or collection agency is vouched for, bonded by, or affiliated with the United States government or any state government, including the use of any misleading name, badge, uniform, or facsimile thereof;
(b) The false representation of:
(I) The character, amount, or legal status of any debt;
(d) The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or in the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector, collection agency, or creditor intends to take such action;
(e) The threat to take any action that cannot legally be taken or that is not intended to be taken;
(g) The false representation or implication that the consumer committed any crime;
(j) The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any state or which creates a false or misleading impression as to its source, authorization, or approval;
(k) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer;
I’m not really sure which to use or how. But it seems to me that (I), (d), (e), (g), (j) and (k) apply here.
So again is this something I should push now in a motion to dismiss prior to answering? Or wait answer and counterclaim? Should I ask for Discovery to have them send me all correspondences they sent to me so they can’t deny they sent it?
I look forward to your thoughts.
Thanks for your comment. To answer your questions generally – and you know I can’t give you legal advice, let me say two things: first, a counterclaim under the FDCPA is rarely a basis for a motion to dismiss – I think you could try it where you have asked for verification and not received it, because that law prohibits further action by a debt collector until responding. So you might be able to get the case dismissed or stayed – in addition to having a claim for the statutory penalty provided by the FDCPA. In other situations where the FDCPA has been violated, though, it will usually not be a defense against the lawsuit brought by the debt collector. Instead, it would be a counterclaim.
The second thing is that you do not have to choose between the claims you bring under the FDCPA (or other laws) – you can bring them all at the same time and have, for example five or ten counterclaims based on different violations of the law. It usually makes sense to allege whatever violation you believe occurred as a separate claim against them. That way, if some of them get knocked out, you’ll still have the others, it broadens the discovery, and it tends to get the judge to award a higher penalty for any violation that is found.
It also makes sense to plead both state and federal violations – even if for exactly the same thing. That’s because the federal law has a maximum penalty of $1,000 – per “incident,” which has often been interpreted to mean, really, that you max at 1000 no matter what they do. But if you add the state claim, you might get a larger, or additional, penalty under that law.
Obviously telling someone there is a bench warrant out for them when there isn’t would violate a bunch of laws if used as part of a collection scheme.
Hope this helps.
Ken
I have responded to this one privately, but also bear in mind that any attempt to intimidate or threaten with the use of false information or a false statement of intention to take some action is a violation of the FDCPA. Remember that all claims can be stated in one suit or counterclaim, so there is no need to choose your basis for suit.
Good thinking.
Hey Ken
If a defendant denies all allegations of a 3rd party credit card lawsuit, can the affirmative defense of “lack of privity” apply since the defendant denies any account with the OC ever existed?
Interesting question. I think the answer to the question as you intended is “no,” but. The defense of privity means that the company suing you did not acquire a right from the original company to sue you on a debt. Technically, if you deny that there was ever an original creditor, you might say there was lack of privity, but really you’re denying that there was any account at all. That’s a general defense (denial), which is easier than an affirmative defense anyway, since an affirmative defense applies assuming that there were a right to sue you.
Thanks Ken.. Good answer. I don’t know why I have such confusion on this.
Speaking of confusio;
Can the affirmative defense of lack of privity (to contract) be used in a cc case braught on by a 3rd party bottom feeder?
I choose to fight the debt collector once I received a summons in the mail for breach of contract. The case was assigned to mandatory arbitration (Oregon) and Pre-Trial hearing was set. I went to the pre-trial hearing, which consisted of the arbitrator and I in person and Plaintiff witness (Custodian of) attorney appearing by telephone. Case was presented by Plaintiff attorney etc. After I was done, questioning their witness the Arbitrator ruled in my favor and dismissed their case.
The case was held on Tuesday May 21 2013 and I just received a letter from the Arbitrator stating the following:
Dear xxxx
enclosed please find copies of the Arbitration Award and Arbitrator’s Itemization of Time Utilized. Costs are:
Filing Fee $150.00
Arbitration Fee (1/2) $390.00
Prevailing Party Fee $275.00
Total $815.00
I will file this on Friday if neither party objects.
Signed by the Arbitrator
The second page of the letter was as follow;
IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF WASHINGTON
ARBITRATION DEPARTMENT
DEBT COLLECTOR, Case No.: xxx-xxxxxx
Plaintiff,
vs., ARBITRATION AWARD
MY NAME ,
Defendant,
Check One:
__This case has been settled. The Arbitration Clerk may submit to the Court a Judgment of Dismissal
X This arbitration hearing was held on May 21, 2013. Judgment is awarded to defendant, dismissing the claim of plaintiff.
MONEY JUDGMENT
I make the following award: In favor of defendant.
Judgment Creditor: My Name
Judgment Creditor’s Address and Phone: My Information was here
Judgment Creditor’s Attorney, Address and Phone: None
Judgment Debtor’: Junk Debtor name was here
Judgment Debtor’s Address and Phone: Their information was here
Judgment Debtor’s Date of Birth: N/A
Judgment Debtor’s Social Security Number: N/A
Judgment Debtor’s Driver License Number: N/A
Judgment Debtor’s Attorney, Address and Phone: Debt Collector’s attorney was list here
Amount of Judgment: $0.00.
Amount of Cost: $815.00 (Filing fee, Arbitrator’s fee and prevailing party fee.)
Amount of Attorney Fees: $0.00.
Interest Information. Post- judgment interest accrues at 9% simple interest per annum on the principal amount of judgment and 9% simple interest per annum on the attorney fees and costs.
Was any part of this award based upon the failure of any party to participate? No.
The third page of this letter was the Arbitrator’s Itemization of time utilized and fees totaling $780.00
My question is so what does this all means and what else do I need to do?
Do I get money back?
Actually I don’t know. Did you pay any money? If you did, you probably get it back, although I’m curious about that “prevailing party fee” – no idea what that could mean. Normally the winner in a suit is awarded “costs,” and this appears to be an itemization of the costs associated with the arbitration. But whether you have to ask the court to award them to you or the arbitrator I don’t know. Suggest you contact the arbitrator. Since you won, he’s likely to be cooperative in explaining.
And good work. I normally don’t suggest arbitration – glad you didn’t get burned. Now what I don’t know is whether this leaves the plaintiff the right to revive the suit. I suspect so. Do you know the rules on this?