I have a pre-trial hearing with creditors lawyers this week....advice?

[signal]

This week I have a pre-trial hearing with Asset Acceptances lawyers.

They filed against me in small claims court, for an alleged $2200 debt. I was never served. They served my parents house, which I don't live at. I have lived at my current residence 7 years, debt is supposedly from about 3 years ago (within SOL).

My parents provided them my current number and address. They called me, and I told them they have not served me, and provided them them the correct address, they said they would serve me but never did. I found out through a friend that the suit was filed, and looked on line and there is was. The court does not have copies of the complaints online, so I have to go there and get a copy.

I assume they will say they tried to serve me and I was not locatable, but all my records, social, drivers license, credit reports, etc have the correct information, with my current address for the last 7 years.

I assume the pre-trial hearing will be a place where they try to negotiate a settlement potentially? I have not even seen the complaint yet, so I feel like I will be a little unprepared, I suppose when I get there they will show me the complaint. I am wondering if I can goto the court and ask the clerk to re-schedule the pre-trial hearing, because the plaintiff has not served me? I want to force these guys to do the right thing and serve me, but at the same time I don't want them to get some summary judgement and claim I was not relocatable.

On the phone with AA's lawyers (or collections peoples posing as lawyers), I told them I have no information on this debt and I need more than some stranger calling me on the phone and asking for money. They told me "We don't have to prove anything to you, you have to prove its not yours". I didn't have it recorded, but I am pretty sure they did, as I would think they record those calls.

Just looking for a checklist or something I should maybe work through to try to make the most of my pre-trial hearing, anyone have anything like that?

[justbroke]

Is it your debt and are you going to fight it? How did you learn about the lawsuit? If your parents forwarded the information to you, you have "constructive" notice at worse, and maybe actual notice at best.

I wish I could help as I have never been sued civilly (other than foreclosure). You may be way behind the curve here unless you could get a dismissal for a technicality, such as improper service. I am not an attorney, and serving the lawsuit on your parents may be considered constructive notice and "good" enough UNLESS your local Rules of Civil Procedure require "personal" service.

If you're lucky, they will not show up for the pre-trial conference where you can just make an oral motion to dismiss. If they do show, you can try to get it dismissed on a technicality since you were never served the complaint.

What are you trying to do? Just slow them down?

[signal]

Justbroke,

My parents were not given any papers, so yes, my parents told me about a person attempting to serve me at their house, so I went on the county clerk of the court website and saw there was a suit filed, it does not show me the actual complaint or paperwork you would get when your served. So my parents simply gave the person my phone number and address. I then followed up with the attorney's office listed on the clerk website, and made sure they had my address, but they never served me even since then.

Not just trying to slow them down. It likely is my debt, but I don't know that they have proper claim to it, as they have provided me no paperwork. I don't want to pay them unless they can show me they have an actual legal right to be paid.

[malf1204]

You need to be careful. I would not meet with anyone or file any papers unless you have been served. In my state MD if you show up to court, or file any type of papers other than a motion to dismiss for improper service you are "placing yourself under the jurisdiction of the court". A smart attorney will wait for you to show up at a pre-trial meeting and simply hand you a summons. Now you are served.

[df04527]

On the other hand they could get a summary judgement also.

[signal]

Ok, I just went down to the Clerk of the Court and got a copy of the complaint. I am typing it below.

Some questions:

They show no contract, no signature of mine. They show a statement on the account from 10/30/2009 which shows I made an $83.00 payment, and they are claiming that is proof that I have accepted this debt?

The "BILL OF SALE" is generic and does not reference me by name, account number, or anything like that.

The Affidavit is from some guy Tony Davis, who allegedly is a representative of GE Capital Retail Bank, and he claims the account was sold to AA. They reference my name and the amount, but the account number in my copy of the complaint is blacked out, not sure why. Why is the statment of perjury only pertain if I am a resident of California (which I am not, and never have been? Anything suspicious about the Affidavit of Sale?

Don't they have to produce an actual contract, that I agreed to with Care Credit/GE?

Also, on March 2012, I disputed this debt via certified letter to Asset Acceptance. I asked them to show me information that shows I owe them any debt, I was very specific and basically used a form like letter I got on this forum. They never responded. My understanding is that AA not responding to my letter of dispute is a possible violation and potentially makes it illegal for them to sue me without responding?



COMPLAINT

Plaintiff, ASSET ACCEPTANCE, LLC, by and through its undersigned attorneys, sues Defendant(s), <First Name Last Name>, and alleges:

GENERAL ALLEGATIONS
1. Damages in this action do not exceed $5,000, exclusive of interest and court costs.
2. Plaintiff is a Delaware Limited Liability Company authorized and doing business in the State of Florida.
3. Plaintiff is informed and believes that Defendant(s), <First Name Last Name>, is/are a resident of XXXXXXXXXXXXXXXX, Florida.
4. Upon Defendant’s request, GEMB/CARE CREDIT DENTAL established a credit card account in Defendant’s name and issued a credit card to Defendant(s).
5. From on or about October 20, 2008 to on or about December 07, 2009, Defendant(s) caused charges to be incurred on GEMB/CARE CREDIT DENTAL credit card account numbered XXXXXXXXXXXXXX. Defendant made a partial payment on or about October 30, 2009.
6. Plaintiff purchased, for value, Defendant’s GEMB/CARE CREDIT DENTAL credit card account, thereby creating a right in favor of Plaintiff, and against Defendant(s). Copies of applicable assignment documents are attached hereto as Exhibit “A”.
7. All conditions precedent to the bringing of this action of occurred, been performed or been waived.

COUNT I – ACCOUNT STATED

8. Plaintiff re-alleges the allegations set forth in paragraphs 1 through 7 of the complaint as if fully set forth herein.
9. Before the institution of this action, GEMB/CARE CREDIT DENTAL and Defendant(s) had business transactions between them, and they agreed to the resulting balance.
10. GEMB/CARE CREDIT DENTAL rendered account statements to Defendant(s), and defendant(s) did not object to the statements.
11. Defendant(s) is/are indebted to GEMB/CARE CREDIT DENTAL, and by virtue of an assignment, to Plaintiff, in the principal amount of $2,118.98, prejudgment interest in the amount of $124.97, plus the costs of this action.

COUNT II – MONEY LENT

12. Plaintiff re-alleges the allegations set forth in paragraphs 1 through 7 of the Complaint as if fully set forth therein.
13. Defendant owes Plaintiff $2,118.98, that is due with prejudgment interest since May 30, 2012, for money lent by Plaintiff to Defendant.

WHEREFORE, Plaintiff, ASSET ACCEPTANCE, LLC, demands judgment against Defendant(s), <First Name Last Name>, in the principal amount of $2,118.98, prejudgment interest in the amount of $124.97, plus the costs of this action.


EXHIBIT A
BILL OF SALE

For value received and in further consideration of the mutual covenants and conditions set forth in the Receivables Purchase Agreement (the “Agreement”), dated as September 19, 2011, by and between General Electric Capital Corporation, a Delaware corporation and GE Money Bank, a federal savings bank (collectively “Seller”) and Asset Acceptance, LLC (“Buyer), Seller hereby transfers, sells, conveys, grants, and delivers to Buyer, its successors and assigns, without recourse except as set forth in the Agreement (which is incorporated herein by reference), to the extent of its ownership, the Receivables as set forth in the Notification File (as defined in the Agreement and incorporated herein by reference), delivered by Seller to Byers prior to such Purchase Date, and as further described in the Agreement.

General Electric Capital Corporation
By: <some illegible signature>
Title: VP

GE Money Bank
By: <some illegible signature>
Title: EVP

AFFIDAVIT OF SALE

STATE OF: Minnesota
: SS
COUNTY OF: Ramsey

BEFORE ME, o the day and date set forth below, the undersigned Notary, being qualified and commissioned in and for the county and state aforesaid, personally came and appeared Tony Davis, who being duly sworn, did depose and say:

Affiant is a Collections Operations Representative at GE Capital Retail Bank, issuer of the relevant consumer transaction/credit card. I have reviewed the information below regarding the debt XXXXXXXX (account number is blacked out) (the “Account”) made by <First Name Last Name> (the “Debtor”) made payable to GE Capital Retail Bank and subsequently sold to Asset Acceptance, LLC.

The amount owed on the account on 9/28/2011, $2118.98 was sold to Asset Acceptance, LLC and is reflected in the system of GE Capital Retail Bank.

The following statement pertains if the debtor referenced above is a state of California resident: I certify under the penalty of perjury under the laws of the state of California that he foregoing is true and correct.

Executed this 7th day of August, 2012

<signed Tony Davis>
Tony Davis
Collections Operations Representative

Sworn to and Subscribed before me this 7th day of August, 2012

<signature of Diane Stone>
Notary Public

My commission expires: 1-31-15



No contract is attached to the complaint. Only two statements from Care Credit, one from 6/9/2010 (showing the account being charged off), and one from 10/22/2008, showing I had made an $83.00 payment.

[justbroke]

I hope you didn't type all that it yourself! In any case, they may have enough evidence to show that there was a charge account, that you did make charges on that account, that you did make one (token) payment, and that you failed to pay. Whether or not a debt validation is sufficient to stop (local) small claims court matter... I can't tell you.

They are likely to get a judgment. The only thing you could probably do is slow them down with discovery and a bunch of procedural somersaults.

That's why I ask, what is your end game? They now have submitted, with their complaint, documentation and evidence of such an account and that you made at least one payment. I don't know what you can do at this point. Even if you settle, they'll probably want a judgment in the amount of the settlement, so you still end up with a judgment.

It reads as though they as poised for summary judgment because there is no material evidence or anything to refute their evidence and force them to trial. By "no evidence" I mean, you haven't responded to the complaint nor have you submitted anything. Florida procedure is interesting since it allows the creditor to serve you within 120 days of filing the complaint! Even then, the court could just demand they serve you within XX days and could still get past 120 days.

What is your defense going to be at the conference if you were to go? Realize that whatever you do, you may be in a bad position and have judgment passed anyhow.

I may also stop posting too much more detail because... you never know. I blocked out your county.

[signal]

Justbroke,

Realize I have never been served. Only "today" did I haul my butt down to the courthouse and see this complaint. I am not paying anyone just because they say I owe them money. Its not like its GE coming for me, its some JDB. I want to be sure they have a right to this debt. I don't know the laws of Florida, I am not a legal expert by any means. If they have a clear path to a valid debt, then I would like to settle. Otherwise, I will play as hardball as I can, and not go down without a fight. IF they truly have a right to this debt, and its valid, then much of this legal action could have been avoided by them properly contacting me, responding to my letter of dispute, and working with me to settle this debt. The fact they avoided serving me at my residence, made me suspicious that there is some problem with this collection, which there very well be. It is my understanding that a JDB may need to respond to a request for validation, and produce some document that shows under what terms and conditions a debt was created (with signature). The fact that they never responded to my certified registered letter, never served me, and have not produced a signed contract, lead me to believe they may not have a case. But once again, I am just speaking from my intuition, I have no legal experience in this area.

I assume, that a pre-trial hearing, is not a place a judgement would take place, but its more of a meeting of the minds, to try to work things out before going to trial. Am i correct? My assumption is I don't have to worry about a judgment in the pre-trial.

[justbroke]

Validation, under the FCRA for Florida's Unfair and Deceptive Practices Act (I think it's called that), may be a different cause of action. The fact that they sued and the complaint contains "validation" and potentially admissible evidence, could be enough to overcome the validation. They could say they never received your validation request. Did you send it CMRR or some other traceable means? (Just a preview of what one of their attorneys could ask.)

I agree with you on not paying something that you don't owe. However, you're saying that you do owe it (the original creditor?), but you don't want to pay the JDB. If they have a proper assignment of the debt, then you owe the JDB and not the original creditor. If you're concerned about these things, including the amount due, and any other contractual terms under the original agreement, then you would need to go through discovery, depositions, and the trial.

Don't be fooled by a pre-trial hearing! The judge will hear any motion before the court at that time. The pre-trial hearing is for "housekeeping" and to avoid wasting the courts time with items perpetually on the calendar. In fact, discovery and certain other things are to be done before the pre-trial conference (hearing).

So, to me, it appears that you are fighting whether they own the debt and/or have the standing to file and be granted judgment in a civil matter. The assignment, of the debt, will be the key.

I assume you could ask for discovery to be re-opened. If you plan to fight the way it appears that you want to fight, you should bone up on the Florida Rules of Civil Procedure and look at some other cases. If you're going to the pre-trial conference (hearing), you may want to figure out what oral motions you can make and whether you can ask for the court to extend the time to respond to the complaint due to lack of service.

Good luck... this is more than what I thought you were asking!

[signal]

justbroke,

it was sent via CMRR. And my copy of the CMRR/letter and my statement, I would think, is a fact before the court, so it would be upon them now to show that they responded if they did. I have no recollection of any response from them.

Thanks for the info on the pre-trial hearing. Yes, I believe that since this is small claims court, and that I have not been served, that they should extend the time for discovery, that only makes sense to me. I am out of town today through Wed. The pre-trial hearing is thursday. Its possible they serve my residence while I am traveled, my wife is there, but still, I JUST got a copy of the complaint today, and I need time for discovery, that seems like a reasonable and basic request the judge should allow. I am trying to make myself aware of the common motions and cause for motions, reading as much as I can. Its my understanding that in some of the pre-trial hearings there is no judge there, just an officer of the court.

As for the assignment of the debt, yes that is an issue for me. I only "today" saw any documents that would even indicate they have any relationship with care credit. The affidavit document has the account number blacked out. The bill of sale document does not reference anything specific about me, my account number, balance etc. And I thought there could be some issues with affidavits from third parties, but i guess since the affidavit is allegedly from a representative of GE, that may be good enough.

I am not sure how much "at risk" I am above the debit. The debt they state is $2118 and then there are court filing costs of about $185. Not sure how much of a judgment they can get, there complaint says not more than $5k but I wonder if they can go that high.

[justbroke]

Affidavits generally need to be authenticated and you could say the affidavit is hearsay. The problem with going to trial is that if you lose, you will end up paying for their attorney(s).

Please let us know what happens. Hopefully you get a good judge that will hear your oral motion for discovery since there was no service.

[df04527]

FCRA is the Fair Credit Reporting act. The one you need to review more is the FDCPA, that is the one that applies to debt collectors. If I knew how to insert a link I would to make it easy for you. They are both on the FTC.gov website.

AA rarely responds to letters and when they do it is a one pager and then it would need to be done within a timeframe also If this account was created online or through the dentist office then there would be no signature on a contract. How did you open the account?

hth

[signal]

My understanding is that in "small claims" court in Florida, the judges are more lax on procedural stuff, realizing that many are pro se. I am hoping I don't need to have all the motions down to be able to communicate what my issues are. This will be an interesting experience.

Brian

[signal]

df04527,

I had an account with Care Credit which was created in person, by filling out paperwork (and signing) some document with Care Credit. Whether that is the same debt assigned to AA, I don't know, I would have to see the original documents. I have the FDCPA info and am reviewing.

[bcohen]

Go to google and search for "chain of custody the JDB's achilles heel", and the first result that comes up, from the forum debtorboards will tell you exactly how to defeat this baseless lawsuit.

The fact of the matter is that Asset Acceptance does not have the evidence to prove that you owe this debt AND they have standing to collect--all they have are some generic documents which prove that AA purchased some accounts (you are not named specifically) and some generic invoices, etc. Printouts of business records purported to be of another company cannot be used by the JDB as evidence in court, but you have to challenge it!