Being Sued by a Collection Agency

[ConfusedXX]

What is the name of your state? Florida
Hello all,
I am being sued by a Collection Company for a old dept. I sent the attorney representing the Collection Agency a request for Debt Validation. I recieved today, 10 copies of statements dating from 11/97 to 8/98. The last payment activity was 2/98. The Law Suit was instituted on June 24, 2002. I also recieved 2 Bill of Sale and Assignments.
The first one states that OSI Funding , LLC (Assignor), for and in consideration of the sum of One Dollar ($1.00) and other goods and valuable consideration, the receipt of which is hereby acknowledged, does by these presents, assign, sell, transfer, convey, and set over to Southern Account Services, Inc. (Assignee) (One who is suing me), its successors and assigns, all of assignor's rights, title and interest in and to certain Receiveables (the Charged -off Accounts), related documents evidencing a security interest, leins or other security instruments or encumberances executed, filed and/or created in conjunction with the Accounts, subject to the restrictions set forth in the Purchase and Sale Agreement (the Agreement) executed by the Assignor and Assigneee dated April 12, 2002.
This Assignment is made without recourse or warranty except at otherwise provided in the Agreement executed by the Assignor and Assignee with regard to the Charged-Off Accounts and other rights, Privileges and documentation refered to herein.

My question is this a Assignment or a Bill of Sale? If this is a Assignment, the collection agency does not own the debt, and therefore I do not technically owe them money.

Attached to the LawSuit was a charge agreement with a copy write date of 2000. Yet in the Law Suit it states that I applied and received a credit card on or about 1989.
Are they required to abide to the agreement back in 1989.

The Collection Agency has not provided me with a copy of my signature on some sort of contract, that states that I have a contractual obligation to the debt collector and original creditor.

Sorry this thread is so long. Am I screwed or do I have a leg to stand on. Any input would be greatly appreciated. Thanks in advance.
ConfusedXX

 

[Ladynred]

You have a leg to stand on !!! And its called the Statute of Limitations !! In FL, the SOL is FOUR years, starting from the last time a payment was made on this account to the original creditor. You have a POSITIVE defense against this suit, but you MUST use it in your Answer to the lawsuit or you are likely to lose !

Last payment of 2/98, the SOL ran out on this debt in 2/2002 ! The lawsuit was filed AFTER the SOL expired, therefore you are still able to fight this based on the expired SOL.

The other thing in your favor is their lack of complete validation, but the SOL is your trump card even though they have not provided the proper paperwork per the FTC's Wollman opinion letter (go to the FTC site and print a copy of it !). You should also look at the case law Spears v. Brennan, which also addresses the validation issue. The SOL is what you want to stress in court, however.

Next, you need to go to the Truth in Lending Act and, under the definitions section, print out a copy of the section, it specifically defines credit cards as open-ended accounts. You'll need this for your defense because most of these jerk CA lawyers try to say that a CC account is a written contract... WRONG ! Unfortunately, judges aren't familiar with this either, so you need 3-4 copies of this section of the Act to take to court with you.

You'll also need a copy of the FL statute that defines the SOL period, judges may not know that either, so be prepared with it.

You CAN fight this and WIN, others have been successful at this. You still do NOT admit its your debt, they have not provided proper validation per the FDCPA and the FTC.

Go to this site and use WhyChat's format for answering a lawsuit for expired SOL debt, its very good. SOL is an affirmaitve defense, meaining YOU have to bring it up and USE it or you lose it.

http://community-2.webtv.net/YChallenge/storage/page12.html

That link is for the answer to the suit. That site also has the FL statue's that you need to support your case.

Don't pay, don't admit anything.. just prepare your answer and when you go to court, stick to your guns on the SOL. If you have absolute proof that the last payment was 2/98, have that with you at court just in case. The lawyers count on us NOT knowing our rights or knowing anything about the SOL. You do NOT have to pay this !

 

[ibcurious]

Ladynred is correct. One thing that I have to add is that if you don't see your signature on any of the "proof" paperwork they probably don't have it. Many companies keep their information in computers and do not have the original contract that was signed. In order for them to prove that it was your debt they must have your signature. Do not admit that it is your debt.

 

[ConfusedXX]

This is great news! Thank You very much!
I am representing Myself in court. I am not sure (Don't know how) to answer the Law Suit. Or how to present this case. Any help would be greatly aprreciated. I will check the above listed sites. Thanks Again.
ConfusedXX

 

[ConfusedXX]

Thanks Ladyred and Ibcurious! You both have been a great help. my court date is 12/9/02. So I have some work to do. You have restored my confidence. I have never been to court before, so I hope i present it well. Thanks Again.
ConfusedXX

 

[ConfusedXX]

Ladyred, That link did not work?

 

[cyana]

Just tried the link myself - it works...

Did you drop the off each end of the link? The link won't work with the [url] tags. It's a great site. In addition to the great advice the LNR and "Curious" have given you, I suggest you check the FAQ's on this site about "being sued". Also if you know the court that your case will be "tried" in, I would contact that court (maybe the court has a website - many in DE do) to make sure what the "rules of conduct" are. I know the courts in DE have websites with their own "FAQs" and helpful info if you're representing yourself. Good Luck!

 

[bigun]

One other thought. There is a Fl. lawyer who in the last few weks filed a lawsuit against Camco for trying to collect out of SOL debts. The link to the story no longer works so, I'll have to send you around the world.
www.sptimes.com. Scroll to the bottom of the page and they'll have a search function. You want the Nov. 5. 2002 edition. Click on "business" and the link will be on the left about prediatory collecting. It gives the name of the lawyer. He may be interested in your case.

 

[JETX]

Ladynred and Bigun are correct. And let me also answer your questions:

Q1) "My question is this a Assignment or a Bill of Sale? If this is a Assignment, the collection agency does not own the debt, and therefore I do not technically owe them money."
A1) Based on the text provided in your post, this was a sale ("assign, sell, transfer, convey, and set over") of the debt to another. The term 'assignment' is simply a legal term used to transfer ownership.

Q2) "Attached to the LawSuit was a charge agreement with a copy write date of 2000. Yet in the Law Suit it states that I applied and received a credit card on or about 1989.
Are they required to abide to the agreement back in 1989"
A2) It is common for credit issuers to send out revised lender agreements, usually with your renewal card. If they have not sent out any updates (unlikely), then the original agreement (1989) would still apply.

 

[ConfusedXX]

Well today was the big day! . I was well prepared and pressed the issue about SOL. The CA tried to say that a credit card is a written contract. (Just like Ladynred said) I was prepared with copies that you told me to bring. The Judge was not sure and asked if I had any Proof, and Bam I presented him with three different documents supporting credit card's are open end contracts. The CA Jaw hit the table.
The Judge asked the CA if they had any proof that a credit card is a written contract. They could not produce anything. The Judge then dissmissed the case. The hearing lasted about 25 minutes. 10 of which I testified. The Judge seemed like he was not too interested in the validation of debt issue. He was more interested in the SOL and that the CA could not provide a contract with my Signature stating that I was obligated to pay.
I want to thank Ladynred[ ,Ibcurious ,Cyana,Bigun and Halket.
You guys were a tremendous help and without your advice I know I would have lost my case.
My Family and Myself would like to extend a BIG THANK YOU to all of YOU! Have a Happy Holiday and a Happy New Year!

 

[bigun]

Nicw work! No, since you raised the SOL which is an affirmative defense, all of the other stuff didn't mTTER.

 

[JETX]

Confusedxx:
Sounds like you weren't confused at all when it came to court. Well Done!!!

And thank you for your good comments, they are definitely appreciated.

Have a good Holiday....

 

[Ladynred]

Woo Hoo !!!!
Way to go !!! I love it that you slammed the CA lawyer with the documentation on the open-ended account issue !!

I'm so glad we could help you, and its encouraging for anyone else facing the same issue. It all goes to show that preparation and documentation pays off in court, and the CA was obviously NOT prepared to be beaten !!

Thanks too for the nice comments

Happy Holidays !!

 

[cyana]

The previous posters have said it all...

so you'll have to settle for a very hearty CONGRATULATIONS!

 

[ConfusedXX]

Thanks Again ! I am sure I will be lurking on this board. For those that are going through the same thing as I did. Hang in there. Prepare and bring the necessary documentation to support your case. The CA lawyers were not expecting me to know this important information and were not prepared. The CA lawyers had won the 2 hearing before mine. I am very Thankful for the help I received from this board. I hope that One day I can return the favor.
Confused XX