3rd Party Collector/Complaint/Summons

[Nancy Brown]

State: Mississippi

Perfect credit record until I lost job 9/2003 - had to quit paying credit cards to survive on Social Security-am disabled. No tangible assets - IRS as lien on home.

First chg off date 4/2004; Credit report shows $7,083 written off but also shows past due as of Aug 2005 as $9,839?? Then comes a civil action notice from a firm I've never heard of doing business under the laws of Georgia (?) as Plaintiff. The attorney is in Mississippi. Wouldn't Plaintiff have to go by colection laws in Mississippi?

In fact it says I entered into an agreement with plaintiff or it's assignor, failed to make payments, & attorney sent demand for payment..and plaintiff is seeking judgement, attorney fees, etc.

The court has ordered I send a copy of "original response." Can I just say I had no formal agreement with plaintiff, debt was written off by original debtor, and plaintiff should provide validation of debts? They did call about the debt (several times), saying they were calling from that legal firm about my MBA account. I told them no way to pay - no money.

I'm suppose to respond to the attorney & file a response with the court within 30 days.
Please - I need advice.

 

[Chien]

It isn't really clear what it is that you're seeking advice about. Just some comments about the post

Q. Wouldn't Plaintiff have to go by colection laws in Mississippi?

A. You haven't shown where it has not. It will have to follow the procedural rules of Miss. It is probably seeking a judgment under the civil laws of Miss. The fact that the plaintiff (creditor's assignee?) is authorized to do business under Georgia's laws does not prevent it from seeking recovery, if you became legally obligated to the assignor pursuant to Miss. law. The attorney will have to show that you did.

Q. Can I just say I had no formal agreement with plaintiff.

A. You can, but the posted facts strongly suggest that you had an agreement with the plaintiff's assignor and, if so, the plaintiff is alleging that it is entitled to assert the assignor's rights.

Q. Can I just say . . . debt was written off by original debtor

A. That doesn't prevent or stop a collection action.

Q. Can I just say . . .plaintiff should provide validation of debts.

A. It's not evident that you ever made a proper request for validation, if we assume that you dealt with a debt collector, which is also not evident (you say "they called", but we don't know who or when). Of greater importance is that you have passed the point where that is a concern. They will have to prove any indebtedness to the court or they won't get a judgment.

You can respond to the court, but stating a financial inability to pay will not work as a defense, and a judgement is likely to follow. You can also pay the debt or work out an arrangement with the attorney to pay the debt. Since your post indicates that neither of the last two are possible, it is probable that the attorney will take a judgment. You will have a record of a civil judgment having been entered against you. Beyond that, your post suggests that very little more can happen. Any assets that you have either cannot be reached to enforce a judgment - SS and DI - or are already under the control of a creditor superior to the current plaintiff.

I wish you better fortune.

 

[emilar]

Q. Can I just say I had no formal agreement with plaintiff.

A. You can, but the posted facts strongly suggest that you had an agreement with the plaintiff's assignor and, if so, the plaintiff is alleging that it is entitled to assert the assignor's rights.

Are they creditors or debt collectors?

FDCPA 803(4). Creditor

Section 803(4) defines "creditor" as "any person who offers or extends credit creating a debt or to whom a debt is owed." However, the definition excludes a party who "receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another."

General. The definition includes the party that actually extended credit or became the obligee on an account in the normal course of business, and excludes [53 Fed. Reg. 50102] a party that was assigned a delinquent debt only for collection purposes

 

[Chien]

My personal opinion is that the operative word is "plaintiff".

I don't know if your question is posed to me, the OP or the forum and, if to me, I don't understand the significance of the distinction being made in this context.

 

[emilar]

First chg off date 4/2004; Credit report shows $7,083 written off but also shows past due as of Aug 2005 as $9,839?? Then comes a civil action notice from a firm I've never heard of doing business under the laws of Georgia (?) as Plaintiff. The attorney is in Mississippi. Wouldn't Plaintiff have to go by colection laws in Mississippi?

Sounds like the plaintiff is a debt collector to me,thats all..... no offence intended .

 

[Chien]

emilar - no offense taken at "creditor", "debt collector" or "plaintiff" - I'm a mortician myself.

But I honestly do not see the significance of your distinction or the point being made.

If you'd like to split the difference, we could say that the plaintiff is litiagting to collect a debt. If that works for you, it's alright with me.

Truth is, if you'd like the plaintiff to be called creditor or debt collector or just plain Joe, that's ok too.

 

[Ladynred]

Ok, the answer to your question is that you MUST file a formal Answer to the Summons and Complaint that you recieved. That Answer is NOT any kind of letter saying that you don't agree, saying the debt was charged-off (irrelevent, doesn't negate the debt), and asking for validation is NOT a proper response for an Answer to a Complaint.

The SOL for all debts in MS is 3 years. If the last time you paid on the account was MORE than 3 years ago (month AND year), then you have an affirmative defense in the expiration of the statute of limitations for legal action and you MUST use that defense and include it in your Answer.

Here is some information on how to Answer a lawsuit for debt collection, and specifically for a debt past the SOL:

http://whychat.5u.com/answer.html