Received Contradicting Evidence For Motion of Discovery

Submitted by Dakotan71 on Wed, 04/14/2010 - 19:15
Forums

I am being sued for an old credit card debt and have some questions regarding what I received as a response to my motion of discovery, which contradicts the amount they’re suing for and what they’ve previously sent as evidence.

Here’s the scoop, I received my first communication from this CA in February 2009, and had sent them a debt validation letter within the 30 days (through certified mail). On March 4, 2010, I received a statement from 12/2003 that they claimed was validation of debt owed. Two days later, I was served the summons and complaint. The amount they’re suing for is the EXACT amount listed on the 12/2003 statement (to the penny).

Today, in their response to my motion of discovery, I received a completely different statement, this one dated 11/2004, which shows payment activity being conducted. The last statement I’ve received from anyone was actually in May 2003, so I wasn’t sure when the last payment was applied.

Up until now, I had every reason to believe that this account was out of SOL (6 years in my state), but this statement defeats my SOL defense. It does, however, potentially present a couple of new possible defenses, but I need clarification first.

One thing I found interesting is that the 2004 statement was printed on February 17, 2010 – more than 2 weeks before they had sent me the 2003 statement as debt validation. This clearly means that they had the 2004 statement in their possession at the time they sent what they claimed was debt validation, and at the time of filing, but chose to use the 2003 statement instead, probably because the amount is considerably higher on the 2003 statement after having made payments in 2004.

My questions are:

1. Would this be considered as misrepresentation of the amount owed, since they have now sent me 2 different statements (each a year apart) with significantly different amounts listed? There is more than a $1,000 difference between the two statements, and it’s obvious that the amount they're trying to sue for isn't even accurate.

2. Since the CA is using the amount from the 2003 statement in their complaint and validation, will the court use the date on that statement or the 2004 statement to determine SOL?

3. Since they had sent an older statement than what they obviously had in their possession as debt validation, can it even be considered as proper validation, or are they now continuing to collect on a debt without providing proper validation (which I requested more than a year before)?

Hi Dakotan,

Can you tell me what did they sent you as validation? If they have not validated your debt properly, and if you have sent certified validation letter, you can use these to counter sue them. Moreover they have sent you 2 different statements. Thus, you can sue them for misrepresentation of facts. For a validation to be considered proper they are required to send you copies of the original signed contract between you and the original creditor, and the account statement showing your outstanding debts. In addition they are also required to provide you with proof that they have been given the right to collect the debt by the original creditor.

However, not all collection agencies provide you with all these together. As for the statute, it starts from the date of first delinquency. If collection agency tries to misrepresent this, then this is under violation of FDCPA and FTC.

Hope this helps,

Regards,

Aaron

Thu, 04/15/2010 - 11:06 Permalink

Aaron, what they sent me as validation (according to them) was the December 2003 statement. All that was contained in the envelope was a letter that simply read, enclosed you'll find validation of debt owed; and the statement itself. In their initial communication letter, they did include the total balance (an even higher amount), but nothing else other than that they had bought the debt from the former CA. I had sent the certified DV letter after receiving that first letter (within the 30 day timespan).

The November 2004 statement was sent after my motion for discovery.

Thu, 04/15/2010 - 13:38 Permalink

Hi Dakotan,

As far as I understand from your query, they had sent you proof that they had bought the debt from the creditor. Thus, they have validated your debt. and you need to pay them. Try to get a debt settlement with this collection agency before they can actually win the judgment against you.

Thanks,

Aaron

Wed, 04/21/2010 - 06:59 Permalink
jag45 (not verified)

If the law firm buys debt from 2nd party, can they still sue and win ? Like in my case I remember that I received letters first from a different company which were not lawyers. Then after couple of months I received from Dominion Law. So most likely Dominion Law bought my debt from 2nd party and not Credit Card issuer. So in such cases will their debt validation be valid ?

Thu, 04/22/2010 - 02:23 Permalink

Hi Jag,

Yes, if the law-firm buys the debt from a collection agency, they can sue you for not paying the debt. However, you can stop this by sending them a validation letter through certified mail, requesting a return receipt. If you want you can use the sample debt validation letter available with this community.

Hope this helps.

Regards,

Aaron

Thu, 04/22/2010 - 11:52 Permalink
Joli (not verified)

I have found case law requiring the original contract and terms regarding credit card validation for judgment but (I have been reading alot of case law!) I'm sure I found one that said copies of credit card statements were not sufficient because there was no way to know the original terms of the agreement and whether finance charges, interest. late fees, etc. complied with the original terms. Can anyone help me on any case law referencing copies of statements?
Thanks so much

Fri, 05/21/2010 - 18:56 Permalink

Hi Joll,

You will be able to get various case laws on debt validation by googling. However, according to the validation the collection agency is required to send you the outstanding debt amount, copy of original signed contract with the creditor, and the proof that they have the authority to collect from you.

Thanks,

Aaron

Tue, 05/25/2010 - 11:56 Permalink
HTML Forms (not verified)

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- Laura

Tue, 10/05/2010 - 12:00 Permalink