Advice needed--being sued by attorney for Discover Card

[HHM]

You can get that result by simply filing an Answer, and raise the affirmative defense that the Statute of Limitation has run. That will preserve your ability to raise the issue. I don't know AZ procedure or court efficiency, but generally, the mere act of filing an Answer to these sorts of suites kicks the case down the road 3-5 months (normally).

[bcohen]

Alright, everybody, I filed my answer with the Court today, and sent a copy to the plaintiff's attorney as required. What's my next move? Motion to dismiss based on SOL being passed? Motion for summary judgment in my favor, again based on SOL being passed? Or do I wait for the plaintiff to send interrogatories and requests for admission, and then serve them with my own interrogatories and request for production of documents, etc?

[HHM]

Probably don't need to do anything at this point if the goal is really just to buy time.

However, if you really wanted to push the issue, you would file a Motion to Dismiss with Prejudice. In that motion, you would state the factual and legal basis for why the motion should be granted. In addition, (check the rules for your area), but you would also file a Request for Limited Discovery so you can request certain items from the plaintiff so you can actually prove the SOL has passed.

[GoingDown]

Now, just out of curiosity, what "proof" would I need to show the court that the debt was beyond the SOL?

I have a lot of paper credit reports showing the original creditors' date of first delinquency, and even the later date of charge off, etc., and then later credit reports showing the junk debt buyers' first appearance on my credit reports usually showing who they bought the debt from and when, and in most cases showing the original date of first delinquency, etc. I also have saved the original response letters from the junk debt buyers where I disputed the validity of the debt, and most them state when the debt was purchased and the date of last payment on each account. I also have the old carbon copies of checks used for the last payments I made to each account (to the original creditors before they charged off the debts and sold them to junk debt buyers). I never made any payments to any junk debt buyers.

Wouldn't that be enough to prove that the debts were beyond the SOL?




In light of all of this, my advice to people who are trying to go this route of playing chicken with creditors and trying to wait them out, definitely send them a letter disputing the validity whenever a junk debt buyer buys an account and keep their response letter in a safe place.

Also, keep the old credit card statements showing the date of last payment, the date of first delinquency, etc., and keep the carbon copy or get a copy of the check from your bank before you close the account. I wish I had kept my old statements from all of these accounts.

But fortunately, I did keep the response letters from junk debt buyers, and any collection agencies which actually responded to my DV letters.

[HHM]

That is a question of state law...most frequently, it would be the date you made your "last" payment. If you are borderline on the timing, you need to research exactly how the SOL is calculated. e.g. is it date of last payment + 30 days; is it simply date of last payment, is there some other triggering event.

Date of charge off will NEVER be the starting of the SOL.

In general, the SOL starts when the plaintiff's right to sue arises. For contracts, that event is usually straightforward; the event of breach. So, most commonly for credit cards it will be the date you were officially in default. Typically, that will be payment due date + grace period. So, if your payment is due on the 5th of the month, and you have a 10 day grace period, the SOL will start on the 16th of the month.

So, you need something that shows when the event took place. It is actually better if you get it from the creditor because then the document would be authenticated for evidence purposes. The court will probably allow you to play fast and loose with rules of evidence if you have, or have a copy, of the original statements.

[bcohen]

Update: I responded to the lawsuit, by sending a copy of my answer to the plaintiff's attorney Certified Mail Return Receipt Requested and filing the original with the court on Friday. The Post Office receipt showed an expected delivery of today (Tuesday).

Tuesday afternoon, while I was attending classes, somebody smashed the front window of our apartment, as if with a brass knuckles, large rock, or similar object. This happened at around 4:30 pm. My wife was home at the time, and needless to say, she was extremely frightened by this, and called the police as well as the apartment management, who came and replaced the window. (The police asked if anyone was injured, and since the answer was no, they didn't even come.)

I did not even find out about this until much later, about 9:00 pm, because I was studying late, and did not call her until then. My wife took pictures of the damage with our digital camera, and it left a huge round hole, and the glass sprayed far into the apartment, though no rock or other object was found.

Now, we are very scared that this has something to do with this lawsuit. It is almost as if the law firm found out that we are fighting their lawsuit, and they won't be getting an easy default judgment, so they sent someone to intimidate us. That is the only thing I can think of. We don't have any enemies or ex's, we don't use drugs or deal drugs, and we don't owe any money to anyone, other than large national creditors and doctors/hospitals. I have lived in this apartment for more than 5 years, so if someone who lived here before me owed money or whatever, I can't imagine that they'd be coming here now.

It just seems like too much of a coincidence that the law firm finds out we're fighting the lawsuit, and then on the very same day this happens! What can I do, besides call the police and complain?

[despritfreya]

Oh dear Lord. . . bc, do you really think some law firm cares about one in hundreds of suits it files each year? Do you really think Discover cares about one in thousands of suits it files each year? Filing and prosecuting such suits is just business.

Do you really think either cares about the relatively small amount you owe - bet it's not over $20k - when others may owe substantially more? Do you really think some attny or member of the Firm, who has better things to do with their time, would stoop to assault and battery in an effort to collect? Come on. We are not dealing with “The Godfather”.

The rock, or whatever it was, was, at 4:30 in the afternoon (while the attny was in his office billing time - and not out hiring some goon to do your family harm) thrown by some neighborhood kids having "fun" at your wife's expense. It’s the parents of those kids you should be “angry” at, not some lawyer who is just making a living by trying to collect on an obligation that is, in fact, owed to his client.

I find it truly sad when we live in a society where folks think the worst of others and conspiracy theories, with no evidence of the same, become the norm.

Des.

[GoingDown]

That is a question of state law...most frequently, it would be the date you made your "last" payment. If you are borderline on the timing, you need to research exactly how the SOL is calculated. e.g. is it date of last payment + 30 days; is it simply date of last payment, is there some other triggering event.

Date of charge off will NEVER be the starting of the SOL.

In general, the SOL starts when the plaintiff's right to sue arises. For contracts, that event is usually straightforward; the event of breach. So, most commonly for credit cards it will be the date you were officially in default. Typically, that will be payment due date + grace period. So, if your payment is due on the 5th of the month, and you have a 10 day grace period, the SOL will start on the 16th of the month.

So, you need something that shows when the event took place. It is actually better if you get it from the creditor because then the document would be authenticated for evidence purposes. The court will probably allow you to play fast and loose with rules of evidence if you have, or have a copy, of the original statements.

I agree that the letters the junk debt buyers sent me in response to my initial DV letters are the best evidence to have for a SOL defense.

But what do you think the court would think of my old paper credit reports where the creditors and sometimes junk debt buyers actually put the date of last payment on my credit report?

[GoingDown]

(The police asked if anyone was injured, and since the answer was no, they didn't even come.)

This is the part I find the most disturbing.

I know that Phoenix recently put out a public statement that most crimes which do not involve bodily injury are being handled by their automated system. In other words, you go online, report the crime, and no cop ever comes out and no cop ever does anything about the crime. They just log the crime into their statistical database and move on.

This will embolden criminals to keep doing these sorts of crimes since there is no punishment for the crime.

The odds of it having anything to do with the lawyer suing bc are extremely low, but just for a moment, think about the fact that some junk debt buyers have ties to the mafia.

Is it probable? No. Is it possible? Yes.

[LadyInTheRed]

The odds of it having anything to do with the lawyer suing bc are extremely low, but just for a moment, think about the fact that some junk debt buyers have ties to the mafia.

Is it probable? No. Is it possible? Yes.

This is not a junk debt buyer. The lawsuit is by Discover. Even if it were a JDB, without some accompanying threat, there would be no rational reason to believe it is related to the fact that bcohen filed an answer. Des' neighborhood kid theory is much more likely.

[GoingDown]

This is not a junk debt buyer. The lawsuit is by Discover. Even if it were a JDB, without some accompanying threat, there would be no rational reason to believe it is related to the fact that bcohen filed an answer. Des' neighborhood kid theory is much more likely.

Yeah, but they're probably using at least a third-party debt collector attorney, and they might be unscrupulous themselves. I'm not saying it's likely, but it is a possibility.

I mean, not too long ago, I hardly ever heard of debt collectors knocking on people's doors. Now it seems to be happening more and more.

They're desperate and I wouldn't put anything past them.

See this... http://www.bkforum.com/showthread.ph...it-at-my-house!

[bcohen]

Update: I responded to the Plaintiff's discovery requests back in November, and served them with my own Request for Admissions, which to date has not been responded to. Two weeks ago, I received a so-called "affidavit" from a person who is supposedly a "legal placement manager" for DFS Servicing, LLC, and a letter stating that this affidavit "may be used in support of" further proceedings.

Yesterday, I received a Motion for Summary Judgment, which is of course supported by this "affidavit" and a sample cardmember agreement. I am, of course, going to file an opposition to this MSJ on Monday. The most interesting thing is that the law firm (Gurstel Chargo) provided a copy of the contract between them and Discover Card in support of their attempt to add attorney fees to the judgment and collect from me! So far, they are looking for about $1000 in attorney fees and court costs, and the contract states that Gurstel Chargo is paid strictly on a contingency basis, i.e. if they don't collect, they don't get paid.

I am hoping that I can beat this, but I am gearing up to file for bankruptcy. I am getting the forms filled out, and I plan to file within 7 days of them winning any judgment. I bet they didn't see that coming!

[despritfreya]

Ok, I hope the below makes sense as I am a bit, shall we say, “tipsy” (bad day at the office and am “sipping” a bottle of wine at the moment.)

As it relates to the Request for Admissions, you are dealing with Arizona Rules of Civil Procedure, Rule 36:

“A party may serve upon any other party a written request for the admission. . . The matter is admitted unless, within (40) days after service of the request. . . or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter. . .”

I don’t know if the above will help in the response to the MSJ. Maybe it will help if you daft a Cross Motion for Summary Judgment. I just wanted to point out that, under the Rules, if the Request for Admission was properly formulated and served, the failure of the other side to respond means that it was admitted.

As it relate to attny fees, in an action dealing with a breach of contract, under ARS 341.01 the prevailing party may be awarded attny fees. (Please note the change in version 1 and version 2 - 2 takes effect on 1/13/13). However, this Statute is used if the contract fails to reference liability for attny fees. If the contract clearly states that the parties are entitled to recover attny fees if there is a breach then that provision will prevail.

Hope this helps in some way.

Des.

[bcohen]

I already argued in the initial anwer to the suit that the Plaintiff is not entitled to collect attorney fees, absent a contract to that effect. To date, they have not produced any contract which I am a party to. The contract between Plaintiff and its law firm is not binding on me.

However, I was not planning to mention this again in my opposition to MSJ. Instead, I am re-raising the SOL defense (which was already raised in my initial answer), attacking the "employee affidavit" and disputing Plaintiff's ownership of the account, and thus their standing to sue.

I will see how this pans out. Worst case, they win and I BK. I have no intention of paying anything toward this alleged debt, nor toward any attorney fees or court costs. I am an unemployed full-time student. If I was forced to repay this debt, then I'd be unable to eat or live indoors!

[HHM]

Standing is a loser argument, which probably means you have pissed off the judge and he will rule against you anyway

SOL is the only real defense you have. But based on your prior post, sounds like you have no independent evidence that the debt is beyond the SOL, so good luck.