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just got served

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Credits: 263.7
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I'm not sure where to start. A sherrif just came to the door this morning and served me a civil suit from Discover by way of a Collection agency law firm Smith Debnam Narron Drake Saintsling & Meyers. What do I do? I have not VD the debt yet. It's about 18 months old. There wasn't a validation noticed attached, just a lot of legal paper, the summons on the front with a file no xx CVDxxxx on the upper right corner. We live in NC and moved 7 months ago from the county that is stated. Do we have to go to Union county to go to court- 4 hours away? Do they have legal right to sue me in this state? They are out of Raleigh. The bottom of each page says the usual 'this communication is from a debt collector. The purpose of this communication is to collect a debt'. Is this legitimate or just to scare us. It is the same letter head that we receive every few months trying to collect the debt. The next 'Exhibit A' is copied papers from Discover credit card aggrement - it's rules and agreement to pay. It is standard form on your credit card bills. Lastly a affidavit from an account manager for the law firm from the State of Ohio saying she has looked up the details and we are not in the military and that we have an aggrement with Discover to pay the said amount.
It says we have 30 days to go in person or send them something by mail. It would be the collection agency/law firm.
Now we have some money to pay this off, but we also have other credit cards that have gone to collections so this may happen again soon. I was just getting my ducks in a row to start sending them VD letters and then make a settlement offer. THen the summons came . I know the debts are mine, but at the time we didn't have the money to pay. Now that I can try to pay and they have all gone to collections I'm not sure where to start.
I just wished I knew more about his before it got so bad....I just didn't know that I should have delt with the OC before it went to collections. Once the interest rates went sky high it was almost impossible to make the payments. There should be a class on this so everyone knows what can happen. Most of us are decent people that had an unfortunate situation happen. I really want to pay these off and move on, but there really aren't any hard and fast rules with CAs.
Any help you could provide would be much appreciated.




Unregistered

Sub: #1 OK first off you should call the court house listed to see if it
Sun, 02/08/2009 - 08:46

OK first off you should call the court house listed to see if it is in fact a legitimate lawsuit. If it is then you will then file a motion to dismiss for improper venue. They sued you in the county where you do not live and they pretty much knew that you had moved to a new county, right?

So if it does get dismissed, they will most likely have to refile it in your county, this will take time so you can then set up payments or pay the whole thing off before they file again.

This is what you can do for now, other than that you will have to answer the summons and neither confirm nor deny the debt. Also any affidavit is hearsay and for the plaintiff to say you owe the money is not admissible for the fact they where not there to see you use the card, where not there when you signed the contract and probably do not have the original contract.

I looked up the last names for the attorney's and only 2 show up in NC, Smith and Meyers so if you have a first name we can see what law firm they are really from, nothing can be found on the law firm you mentioned so it's probably a basement firm.

Any other questions feel free to ask, I stop in here every day so I will be back later tonight. Here is a sample DV letter for you to format to your needs, send it certified mail return receipt requested and do not sign the letter, just initial it and type your name when you print it.

Your Name
Your Address
CITY/Town, STATE ZIPCODE

Date: March 9, 2005



Collection Agency Name
Address
CITY/Town, STATE ZIPCODE

Re: Acct Ref. # XXXXX and XXXXX

To Whom It May Concern:

This letter is being sent to you in response to a alleged debt. Be advised that this is not a refusal to pay, but a notice sent pursuant to the Fair Debt Collection Practices Act, 15 USC 1692g Sec. 809 (b) that your claim is disputed and validation is requested.

This is NOT a request for verification or proof of my mailing address, but a request for VALIDATION made pursuant to the above named Title and Section. I respectfully request that your offices provide me with competent evidence that I have any legal obligation to pay you
.
What I need you to provide as the debt validation is as follows:
1. What the money you say I owe is for;
2. Explain and show me how you calculated what you say I owe;
3. Provide me with copies of any papers that show I agreed to pay what you say I owe;
4. Provide a verification or copy of any judgment if applicable;
5. Identify the original creditor;
6. Prove the Statute of Limitations has not expired on this account
7. Show me that you are licensed to collect in my state
8. Provide me with your license numbers and Registered Agent
9. Proof that the collection company owns the debt/or has been assigned the debt. (You are legally entitled to collect this particular debt from me.) This is basic contract law.
10. Complete payment history, starting with the original creditor. (I need to have proof of my payment history with original Creditor, what the amount of the debt was when the creditor assigned the debt to your company, and what fees/interest has been tacked on to this debt and how you/they determined these fees.) This requirement was established by the case Fields v. Wilber Law Firm, Donald L. Wilber and Kenneth Wilber, USCA-02-C-0072, 7th Circuit Court, Sept 2004..
11. Copy of the original signed loan agreement or credit card application. (My contract with the original creditor establishing the debt between us.) This is also basic contract law.

At this time I will also inform you that if your offices have reported invalidated information to any of the 3 major Credit Bureau's (Equifax, Experian or TransUnion) this action might constitute fraud under both Federal and State Laws. Due to this fact, if any negative mark is found on any of my credit reports by your company or the company that you represent

I will not hesitate in bringing legal action against you for the following:
1. Violation of the Fair Credit Reporting Act
2. Violation of the Fair Debt Collection Practices Act
3. Defamation of Character

If your offices are able to provide the proper documentation as requested in the following declaration, I will require at least 30 days investigating this information and during such time all collection activity must cease and desist.

Also during this validation period, if any action is taken which could be considered detrimental to any of my credit reports, I will consult with my legal counsel for suit. This includes any listing any information to a credit reporting repository that could be inaccurate or invalidated or verifying an account as accurate when in fact there is no provided proof that it is.
If your offices fail to respond to this validation request within 30 days from the date of your receipt, all references to this account must be deleted and completely removed from my credit file and a copy of such deletion request shall be sent to me immediately.

It would be advisable that you assure that your records are in order before I am forced to take legal action.



Best Regards,




Frogpatch


Posts: 5385
Credits: 65249.155519088

Sub: #2 Guest, are you a member that forgot to sign in? If not why not b
Sun, 02/08/2009 - 08:58

Guest, are you a member that forgot to sign in? If not why not become one. You seem to be quite versed.

Escape the Payday Loan Trap http://tinyurl.com/pdltrap
Article-When the Debt Collector Calls




Unregistered

Sub: #3 I was a member and I cannot remember my password. I tried a few
Sun, 02/08/2009 - 09:02

I was a member and I cannot remember my password. I tried a few times to get a reset and I was never e-mailed with a new password. My user name is pok ertrampno space, the word is not allowed,lol. and my e-mail is the same at hotmail. So if you can talk to someone about helping me, it would be appreciated.




pokertramp
Debt Samaritan
Posts: 512
Credits: 2791.5

Sub: #4 OHHH Forget it just popped into my head for some reason lol.
Sun, 02/08/2009 - 09:03

OHHH Forget it just popped into my head for some reason lol.




Frogpatch


Posts: 5385
Credits: 65249.155519088

Sub: #5 That only happens to people my age! I am constantly answering th
Sun, 02/08/2009 - 09:13

That only happens to people my age! I am constantly answering those "forgot your password?" links.

Escape the Payday Loan Trap http://tinyurl.com/pdltrap
Article-When the Debt Collector Calls




Unregistered

Sub: #6 Follow up to conversation this morning "just got served
Sun, 02/08/2009 - 14:02

Thanks so much for your help this morning.

We have a few additional questions that I have pasted on to your response.

OK first off you should call the court house listed to see if it is in fact a legitimate lawsuit.

If it is then you will then file a motion to dismiss for improper venue. How do we do this?

They sued you in the county where you do not live and they pretty much knew that you had moved to a new county, right?


? On the Civil Summons it states ???Date of subsequent summons issued??? document lists November 14, 2008 ???? We never received this summons.

?This document is stamped with a Date of January 28th 2009 Union County.

?The document states that we are notified to appear and answer the complaint of the plantiff???

1. Serve written ???answer??? to the complaint to the plantiff or their attorney within 30 days after you have been served (2/8/09)
2. File the original answer with the cler of superior courts in the county named above???(union where we do not live?)


This is what you can do for now, other than that you will have to answer the summons and neither confirm nor deny the debt.


?What is the ???Answer??? we are write to the plantiff and the clerk of superior court?

So if it does get dismissed, they will most likely have to refile it in your county, this will take time so you can then set up payments or pay the whole thing off before they file again.

? When do you recommend sending the validation letter?


Also any affidavit is hearsay and for the plaintiff to say you owe the money is not admissible for the fact they where not there to see you use the card, where not there when you signed the contract and probably do not have the original contract.

I looked up the last names for the attorney's and only 2 show up in NC, Smith and Meyers so if you have a first name we can see what law firm they are really from, nothing can be found on the law firm you mentioned so it's probably a basement firm.

? We do not have any information on their first names.

Thank you so much for your help on this matter. As you can imagine it has been a very stressful day.

Thanks again.




pokertramp
Debt Samaritan
Posts: 512
Credits: 2791.5

Sub: #7 OK I will do my best at this.... 1. To get this dismissed, I
Sun, 02/08/2009 - 15:30

OK I will do my best at this....

1. To get this dismissed, I would try calling the court house where they are suing you. Ask them what you need to do to file a motion to dismiss for improper venue. Tell them that they are over 4 hours from you and that the court house in your county is down the street, assuming it is. You may have to type up a legal jargon paper, it's just in court terms which I will post what it might look like after this. Then you would mail one copy to the court and another to the plaintiff's attorney. Also you would include a certificate of service stating how, when where, and what was sent.

You might get lucky and be able to do it over the phone.



2. Yes you would have to respond to the court where you do not live, but again, call them and ask them what your options are because they are suing you in an improper venue.


3. Along with the summons there should be a complaint. It should have a few numbered accusations. 1. would probably be the defendant's name is john doe and used a credit card numbered1234-4456-4567-9876.......the last question probably says you owe a certain amount of money to the plaintiff.

You have to confirm or deny these questions. If they ask for your name confirm it if it's your correct address, confirm it. Anything else that has to do with the debt state "defendant can neither confirm nor deny without sufficient documentation".

When it comes to them saying you owe someone other than the original creditor, Say "Objection, defendant has never done business with or signed any agreement to pay said plaintiff."


4. If you where sent an initial letter from this company and you ignored it the first time then a debt validation letter is pointless. They might answer it but they do not have to obey it. You have 30 days to send one after the initial communication in writing. After that they can sue even if you sent a DV letter after the 30 days.

5. Does it have their BAR number or attorney number in the documents? I find it really odd that the attorney would be listed and not show his or her first name. I doubt that would even be legal.

Best of luck to you and don't forget to call ASAP because if it is a real summons and you do not answer it within the time limit, they might get a default judgment.




Unregistered

Sub: #8 documents for being served
Sun, 02/08/2009 - 15:47

Thanks for all the info. Are you saying that I don't need to send the DV letter if they sent me communication and I ignored it. I did ignore it, and I didn't know about DV letters at the time. It's amazing how much we learn after the fact! I've done a lot of reading in 18 months. Anyways, there are no BAR numbers or attorney numbers on it. It is just the same letterhead from the same law office and even the same copied signature as the other letters that I have received.
I did not see a complaint section or any questions regarding a complaint on the summons. Let me know there is anything else I should know. You've been very helpful. I hope to get on this Monday am.
THanks




pokertramp
Debt Samaritan
Posts: 512
Credits: 2791.5

Sub: #9 You can try to send a DV letter, just don't count on them respon
Sun, 02/08/2009 - 16:00

You can try to send a DV letter, just don't count on them responding. They probably don't have a leg to stand on anyway..


OK Now that sounds really fishy, They have the name of the law firm, correct?

Did an attorney sign this?

So your saying the summons is on THEIR letterhead?

I am almost certain that every attorney needs to post their BAR number on all legal papers, I am pretty sure it's the law.

Is there a docket number on it anywhere? Something like 1234cv2345?

I am starting to think it is a fake summons and if it is then it's a whole new ball game.......

If it is a fake summons then you will need an attorney to sue the pants off of them.




Unregistered

Sub: #10 served a summons
Sun, 02/08/2009 - 17:09

I did find a complaint page. I'll paraphrase:
1. The plaintiff is a state chartered financial institution conducting business in interstate commerse.
2. The Defendant resides in Union County and is neither an infant nor imcompetent. (I do not reside in Union County)
3. The plaintiff provided credit to the defendant pursuant to the agreement annexed hereto as Exhibit A. Def. defaulted on the agreement by failing to remit the required payments as they came due. Defendant owes $xxx according to the affidavit...
4. Because defendant failed to make monthly payments as provided in the agreement the rate of interest that applies to the past due balance on the account is 19.99% per annum.
5. The agreement further provides for the collection of reasonable attorney's fees and will collect pursuant to G.S. 6-21.2 et seq. Defendant has 5 days to pay outstanding principal plus accrued interest and attorney's fees.
WHEREFORE.....Bal due plus 19.99% per annum before judgement and 8% after plus $2535.02 attorney fees.

It is signed by a women (only a copied signature) the same signatue that is on every form letter this collection agency/attorney's office has sent me.
Yes, there is a file no. on the original state of NC summons
08CVD3990.
One affidavit is signed by a Legal placement Account Manager, for DFS SERVICES LLC it says State of Ohio County of Franklin. She swears that she has access to and has reviewed our files from Discover and everything says that we did not pay the amount stated. She also swears that I am a resident of the state and the country in which the action is being filed (not the county but the country)
THe other affidavit is signed by a Collection agent that works for the law firm. She swears that I am not in the military. That's a little more info. Thanks again.




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