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Help with a response and counterclaim...skydiver & goldenbast--thanks!

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skydivr and goldenbast--

Thanks to you both for your willingness to help. If anyone else has suggestions as well, I'm all ears! I just need a little help wording my response and counterclaim to a complaint from Ferrell & Seldin via Midland Credit Management.

Timeline:
March 6th, 2011 - served by Ferrell & Seldin (F&S) a summons and complaint re: Midland. First I heard of this request for money from either party.
March 7th, 2011 - called the local courts to inquire if F&S had filed their complaint yet; they had not.
March 7th, 2011 - mailed a DV to F&S
March 8th, 2011 - F&S received my DV; have return receipt card proving this.
March 21st, 2011 - had heard nothing from F&S. Called the courts to inquire if they file with courts yet; they did file the complaint on March 16th. After they received my DV.

I would like to deny of course their allegations. I would like to file a counterclaim simply asking for court costs (if permissable) and demanding they disclose proof that I owe the debt and that they own this debt and have the right to collect . Thanks so much! (had to copy and paste text from summons and complaint; file was too big for attaching to forum post. I apologize, some of the text turned to gibberish with OCR text recognition conversion, but you can get the gist of it all).

kdestef




Ok so is that telling you that you have to be at court on 4/13 you have to appear and answer??? When did you get this? It was filed on march 16 and you just now get served?

Was there anything with the summons, affidavits, statements, whatever.

Sub: #1 posted on Tue, 04/12/2011 - 07:31

goldenbast goldenbast
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(Posts: 2885 | Credits: 380.48)

Yes, I must file a response before the 13th (this afternoon) or appear at the courts at 8am and respond (the morning of my birthday no-less, happy birthday to me). I am hoping to just get my reponse filed this afternoon and then the ball is in their court. Skydivr has offered to help me as well. I'm just hoping I can get the wording nailed down today so I can get over there before the court closes.

I was served the typed up paperwork on court documents but with no case number on March 6th, but when I checked, they didn't officially file the complaint with the court until March 16th - 10 days later and 8 days after they received my DV.

They attached a form at the end of the summons and complaint that is on their letter head and just says "Optional Information Sheet" asking for name, address, ph. number, employer's name, address, ph number, how long I've been working with them, how much I can pay a month, etc. I haven't given them any info nor do I plan on doing so.

Just need to know how to respond with a counterclaim. I feel they violated my FDCPA rights by not giving me the validation I asked for before they filed decided to file the summons and complaint. I intend to deny their claims and need to know how to word the demand for validation without sounding like I don't know what I'm talking about... :) Well, I know what I want to say, it's just the legality aspects that I'm unsure of. Thanks so much for your reponse!

Sub: #2 posted on Tue, 04/12/2011 - 20:12

kdestef kdestef

(Posts: 44 | Credits: 18.19)

If you can file today good, I am not sure on our time differences. You might have to just show up at the appointed time to give us through tonight to help you. Ok Answers are easy....they didn't try real hard with those statements.

1. Agree
2. Agree
3. Without sufficient information to agree or disagree
4. Disagree
5. Disagree
6. ((I am not sure about #6 it doesn't make much sense....if all else fails answer without sufficient information to agree or disagree.))
7. Agree

Format your response just like the summons, except instead of putting Complaint you would put Answer, then number each answer.

Then go ahead and answer that weird paper...just format it just like the paper itself.

The plaintiff has provided no documentation that would prove any of these claims.

2. Defendant asserts the following counterclaims against Plaintiff:

1. Plaintiff violated Fair Debt Collection Practices Act (FDCPA) 809 in that they never contacted Defendant prior to serving a summons, giving Defendant a chance to dispute the alleged debt.

2. Plaintiff violated FDCPA 809 (B) by receiving a letter from Defendant, certified mail return receipt number: ######## on 03/08/2011 and continued collection activity by filing suit on 03/16/2011, eight days after receiving the validation letter.

3. Plaintiff violated FDCPA 807 (2) (A) in that they have no documented proof of any monies due and owing, thereby misrepresenting the character, amount or legal status of this alleged debt.

4. Plaintiff violated FDCPA 807 (8) by still filing claim when Plaintiff knew Defendant disputed the debt and never reported it as such, thereby communicating with another while knowing the debt is false by having no documented proof.

5. Plaintiff violated FDCPA 807 (10) by sending Defendant a summons when no suit was filed, thereby acting in a false and deceptive manner.

6. Plaintiff violated FDCPA 807 (11) by failing to place the required words on the first communication (summons).

7. Plaintiff violated FDCPA 808 (1) by attempting collection of monies without the expressly authorized agreement allowing Plaintiff to do so.

------------------------------------------------------------------------ -------------------------------------------

Ok...I need to take a break..but so far here is some stuff for you to work on. I know there are a lot of counts in the coutnerclaim (with still more to come) but they are all factual...though the judge has final say on interpretation..however, if even ONE gets through, that is a $1000 win.

Hey if you can...get online copies of your credit reports...see what is listed in regards to this account....FCRA and FACTA has some nice laws that you may be able to add on a few more counts, and THESE counts accumulate...where FDCPA is $1000 no matter how many violations, FCRA is $1000 PER violation....so technically you can go all the way up to the limit for your courts....if you want to go that route..it is the Most Aggressive Rout. :):):)

I will be back later today to further help out.


Sub: #3 posted on Tue, 04/12/2011 - 22:09

goldenbast goldenbast
Moderators Cum Industry Expert
(Posts: 2885 | Credits: 380.48)

Wow Goldenbast, thank you so much! I was really starting to panick a little. I know you haven't felt up to doing much and that was a lot to lay out for me. I owe you big time! I think with time differences skydivr may be unable to help within the timeframe I am required to get it filed. From my understanding of the documents, I need only to reply before tomorrow so I will file my response this afternoon.

Btw, Midland reported their information to my credit bureaus (I had already checked when all this was going on). I disputed the claim with the bureau and requested it for removal. The bureaus removed it. However, as you mention above, they had reported prior to any validation so that is a violation from my understanding, correct? I'll look up the info you referenced and see if I can add it in to the counterclaim.

Again, thank you for all your help when I know you weren't feeling up to it. I am extremely grateful for having found this forum and the services that you and all the forum experts provide.

Sub: #4 posted on Tue, 04/12/2011 - 23:26

kdestef kdestef

(Posts: 44 | Credits: 18.19)

Sorry I couldnt get to you sooner, but check your email....

A couple points:

--it is not a violation of section 809 FDCPA for Midland to file a lawsuit without trying to contact you or taking any other efforts to collect. There is nothing in the FDCPA that says they cannot file a lawsuit against you until after they contact you and try to collect. The violation of 809 did occur, but thats because they ignored a proper and timely DV request/dispute and then proceeded to continue collection efforts--namely, they filed the lawsuit after they got your DV letter.

--the other violations all look correct. I especially find it weird that they sent you a summons before they even filed the lawsuit with the court...

--This is not a "$1000 win". The law allows that the statutory portion of the damages is "not more than $1000". This means the court could find in your favor and award you no money at all. It is not a guaranteed $1000 if you win, but rather it is any amount not to exceed $1000.

--you did not have to have your answer in today. The document instructions say that you can either answer before tomorrow or show up tomorrow and file your answer then. But if you already got it in, thats no problem.

Golden did one very cool job on this, thanks for digging in when I was unavailable to reply in time! Golden is one of my favorite folks here, always with great advice!

Sub: #5 posted on Wed, 04/13/2011 - 06:21

skydivr7673 skydivr7673
Moderators Cum Industry Expert
(Posts: 2037 | Credits: 579.66)

That first one, some judges go for, it doesn't hurt to try! Honestly I think it should be a violation, because if it isn't, then they can just sue you and skip even sending a letter so that you can't dispute.....thats what it looks like....at the very least you could argue that they violate 809 in that if you consider the summons first contact, then they should STILL send a letter in 5 days....so you could argue it in different ways..can't hurt.

So OP how did the pretrial thingy go? Please let us know! I am sorry I could not jump back on....getting over a nasty flu and it hit me hard.

Sub: #6 posted on Fri, 04/15/2011 - 00:04

goldenbast goldenbast
Moderators Cum Industry Expert
(Posts: 2885 | Credits: 380.48)

Hi Golden and Skydivr,

So, as you both know already, I filed my answers and counterclaim with the help of Golden (thank you, thank you). Skydivr thanks to you too for your willingness to help and follow-up, bummer about our time difference but that's why I put feelers out there to you both.

I'm not sure about the first counterclaim but I suppose it would be subjective and not necessarily law based on the FDCPA and it's vagueness in this area. However it does sound like a legitimate reason for contesting their actions which seem to be arbitrary. I suppose this is always up to the discretion of the judge. Technically they sent nothing within the 5 days after their first contact (the summons) and went straight to filing their summons. Totally agree skydivr with your kudos to Golden, both of you guys are amazing.

So back to the timeline: I filed the afternoon of April 12th. April 13th, around 4:00pm, I called the clerk of courts to ask about the case. They informed me that Midland would be sending me a trial date via snail mail but they had nothing in their court records of this yet. From my past experience with Arrow Financial, I filed my response and they set a trial date immediately with the court. Midland's hesitation to do so right away tells me they are either scrambling to find something or they have nothing and they're just moving onto the next victim. We will see.

I will keep everyone posted on the outcome of this. This has been an educational journey for me. Fortunately so far it has been with good outcomes. I can only hope it continues.

Sub: #7 posted on Fri, 04/15/2011 - 04:21

kdestef kdestef

(Posts: 44 | Credits: 18.19)

Be sure to file a motion for discovery and ask for:

signed agreement/contract
final statement or all statements
Breakdown of the charges
something that proves they are the legal entity to collect the debt

Just format it like everything else, send a copy to the lawyer certified mail return receipt, then file a copy with the court..don't forget the certificate of service.

Sub: #8 posted on Fri, 04/15/2011 - 22:46

goldenbast goldenbast
Moderators Cum Industry Expert
(Posts: 2885 | Credits: 380.48)

When you say, "certificate of service", do you mean they need to be served with the Discovery? So I serve them and mail it to them after I file it? Just checking the logistics of this. Do I send copies to both Midland and their Lawyer?

Also, what happens if I file a Discovery and serve them with it, do they get a certain amount of time to answer? 30 days? Who determines this, me or the court? And if they don't answer the discovery within the allotted timeframe, do I have to file another motion requesting dismissal or is this automatic?

Sorry, a lot of questions here but want to make sure I do it right the first time! Thanks!

Sub: #9 posted on Sat, 04/16/2011 - 00:18

kdestef kdestef

(Posts: 44 | Credits: 18.19)

Certificate of service is a form you sign and file with the court basically telling them you served the motion on the plaintiff. In this case you would send the motion to the lawyer, do not contact Midland at all...at this point you are dealing with their lawyer.

The lawyer gets a copy and the court gets a copy. By court, they have 30 days to respond. In all likelyhood they will either not respond at all, or they will object to it.

If they do not respond then you can file a motion to compel and if you still don't get what you want, file a motion to dismiss.

Sub: #10 posted on Sat, 04/16/2011 - 03:08

goldenbast goldenbast
Moderators Cum Industry Expert
(Posts: 2885 | Credits: 380.48)

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