Arbitration/under 18/harassment.

[lrdpath]

New York.

Some background - i've been fighting off MBNA for 11,000 - now 14,000, that they say I owe... on an account that never existed to my knowledge, for over a year now.

First off, I originally was contacted by MBNA's collection department directly. I explained that this account was not mine/never existed. They offered to settle with me for 10%.... a measly 1,100 aproximately. I said that I would not, because their claim was invalid, obviously they knew that or they wouldn't have offered to take such a small amount. After arguing, I was told that they would take care of it, and that I shouldn't worry.

I got a letter saying they wrote it off as profit/loss. No more action would be taken.

Then 6 months later, I start getting harassed by the law firm of Wolpoff and Abramson, L.L.P. They added legal fees to the original debt claimed... which I didn't even think was legal, because apparently they bought the debt, (cheap - of course) and are now trying to collect on it. Yet they added legal fees?

Anyway, they served someone in new jersey who accepted the papers.. a friend of mine, who didn't understand what they were doing. The process server never checked his ID or even asked his name, just handed him the papers.

So, at the time, I had no idea that this was even going on, until I get a letter through my friend that an order of award was defaulted against me for lack of response.

--- this is without even basic evidence to back up the claim as per forum code ---

Using all of this I was able to push through an order for reopening and reconsideration, invalidating the default order of award against me.

When I put through that request - last AUGUST... I CLEARLY sent to both the law firm, and the forum, my PROPER address. The forum obviously agreed since from what I read, they almost never put through an order to reopen and reconsider. They now send all mail to my address in NYC.

We were given all the way until January 24th of this year for the claimant (them) to submit evidence, and for me to submit anything I wanted to be considered. This document stated that all extensions were included and that time was FINAL.

On the 23rd, Wolpoff sent an extension request, with no supporting evidence, claiming they needed to find the information necessary. (How did they even start a claim if they had no information on hand???) Yet the forum granted this extension.

I find that particularly unfair... i'm one person, 21, a full time student with a lot of other responsibilities. They continue to direct mail to the NJ address, which means I get it through my friend, but it's always delayed, sometimes by a long time. Yet I have still managed to fend them off. They are a huge law firm, representing a huge creditor with billions in assets. (Not sure of the exact amount of MBNA's holdings). Yet they get more time, to find documents, that normally should have been submitted when the claim was first made!!!!


Anyway, I recieved their supporting documents/evidence packet which is bull****.

(1) Claimant submits that a credit card account was opened at the Respondent's request on May 14th 2001. (furthermore, they show no proof)

I was born 07/26/1983. That means I was 17 on 5/14/2001. Just barely under the age of majority, but under. How could I have signed a legally binding contract for credit?

----Am I right in this defense? I will be submitting a notarized copy of my passport/drivers license/ss card of course.

(2) Exhibit 1 shows the the terms and conditions of the account.

--- It has no name, no signature or anything. It is the standard MBNA terms of service agreement. Does this support their claim in any way? It doesn't show any information linking me to the account in question, or even this specific agreement to that account.


(3) Exhibit 2, proof of service.

There is no description of me, nothing to identify me... just a notarized statement by the process server that he served 'me'.

-- is this legal proof of service? Don't they have to in someway describe me? get my signature? hell, take a picture... something.

(4) Exhibit 3 is supposedly an Affidavit of Custodian of Records stating that as of this date a principal balance of 11,145.59 remains.

This was conveniently missing from the packet I was sent. So i'm not even sure how to respond except to claim non-reciept of exhibit 3.

I am rather sure based on this companies methods that it is no accident, but rather left out on purpose to confound me.

However, other than Exhibit 3, which may or may not state my name or other info... there is no evidence that I had an account, or that I owe a balance on any account.

Do they in any way have a legitimate case? The forum seems VERY biased towards creditors.

Do I have anything in the fact that I was not 18 at the time they claim the account was opened, and an agreement signed.

I will also be submitting an affidavit from my friend stating that he lives at the address, alone, that I do not, that I was not there that day, and he accepted papers thrown at him, without giving his name.

Do I have anything by contesting that they are STILL serving me at the wrongful address, and I am only being notified delayed through my friend/and through the forum.

They also send everything regular mail, while I waste 20 bucks making sure everything is expressed with a proof of receipt and tracking.

This whole ordeal is aggravating, because it seems like no matter how in the right I am, arbitration is biased towards them.

Does anyone know if I retain the right to enter a counter-claim with my most current response for harassment, etc... or did that have to be done with an original response to notification of arbitration?


Any comments/suggestions/help would be appreciated.


BTW - while this was ongoing, another law firm was hired to sue me in Hudson civil court. I wasted my time responding to that, plus the filing fee, in the hopes that at least the judge would respond to my request to dismiss the case with prejudice so that they couldn't bring it against me again in the legal jurisdiction.... unfortunately, the law firm sent me a stip of voluntary dismissal, and most likely are just now going to wait until arbitration is over to reopen the civil case in NYC civil court.

Jeremy

[Ladynred]

Ok, a couple of questions.

WHY are they sending information to a NJ address ?? Did you once live there or use it as your address for anything ??

Is your current address on your credit reports ??
You can bet W&A has pulled your credit and if they did, they DO have your CORRECT address, and yes, you can use that and the fact that you notified them of your proper address and they keep sending stuff to NJ ! They're playing damn games with you. W&A thinks they are bullet-proof and nothing and no one can beat them. They are not, they are lying scumbags who use dirty tactics.

The NAF is the lapdog of MBNA and other creditors. Consumers RARELY have any chance in hell of prevailing in their kangaroo court of arbitration. I had read somewhere that the head honchos of W&A are actually ON THE BOARD of the NAF, they are not and cannot be 'unbiased'.

1) Pure bullcrap.. that proves NOTHING ! Yes, showing proof that you were a minor at the time they claim this account was opened CAN stop this whole process. Sounds like you have been the victim of identity theft and you need to pursue that with a vengence. BOTH the underage issue and ID theft are valid defenses.

2) Make them produce a SIGNED agreement, something showing a signature. A generic agreements means NOTHING. You need to send W&A a formal debt validation letter, ASAP, its your right to do so per the Fair Debt Collections Practices Act (FDCPA).

3) Depends on the statutes in NJ regarding proof of service, so you need to read the NJ statutes. You can read them here:

[url]http://www.guaranteedsubpoena.com/nj.asp[/url]

The section on what the process server must provide on the proof of service is under "4:4-7 Return".

4:4-7. Return
The person serving the process shall make proof of service thereof on the original process, and in Superior Court actions also on the copy, and shall promptly file such process with the court within the time during which the person served must respond thereto. The proof of service shall state the name of the person served and the place, mode and date of service, and a copy thereof shall be forthwith furnished plaintiff's attorney by the person serving process. If service is made upon a member of the household pursuant to R. 4:4-4 that person's name shall be stated in the proof or, if such name cannot be ascertained, the proof shall contain a description of the person upon whom service was made. If service is made by a person other than a sheriff or a court appointee, proof of service shall be by similar affidavit which shall include the facts of the affiant's diligent inquiry regarding defendant's place of abode, business or employment. If service is made by mail, the party making service shall make proof thereof by affidavit which shall also include the facts of the failure to effect personal service and the facts of the affiant's diligent inquiry to determine defendant's place of abode, business or employment. With the proof shall be filed the affidavit or affidavits of inquiry, if any, required by R. 4:4-4 and R. 4:4-5. Where service is made by registered or certified mail and simultaneously by regular mail, the return receipt card or the unclaimed registered or certified mail shall be filed as part of the proof. Failure to make proof of service does not affect the validity of service.
Note: Source R.R. 4:4-7. Amended July 14, 1972 to be effective September 5, 1972; amended June 29, 1990 to be effective September 4, 1990; amended July 14, 1992 to be effective September 1, 1992; amended July 13, 1994 to be effective September 1, 1994; amended July 10, 1998 to be effective September 1, 1998.

You most certainly DO have the right to sue these SOB's, but you need to demand validation first. You must do so to protect your rights and your right of action. You can find info on debt validation at [url]www.creditinfocenter.com[/url] along with sample letters. You will also find a thread in the "Is there a lawyer in the house" forum called the " Master refusal of arbitration thread' that has lots of info you can use.

I have been dealing with these scumbags at W&A myself lately, though no arbitration (they can't arbitrate it) . I have a validation demand letter that was written by a lawyer friend of mine. If you're interested, PM me.