Please help me with this...

[NewEnglander]

What is the name of your state? Massachusetts

About 6 years ago, I returned to work after being unemployed for quite some time. I settled on two delinquent credit card accounts, which had gone to collection agencies. I cut up my cards, and never applied for or accepted another offer for a credit card. To date, my only card is a debit card.

About 8 months ago I was contacted by an attorney, representing a bank, collecting on a credit card. This collection agency claimed I owed $4,100.00. Since neither of my cards exceeded a $1,200.00 limit and were settled, I assumed that a mistake had been made.

I responded to the initial letter, within 30 days, and indicated that I was disputing the validity of the debt. I also requested information regarding the account, including specifics such as opening and closing dates of the account, charges, etc. I indicated that I needed information on this account so that I could try and pinpoint the problem and determine my next course of action. I received no response. I sent two more letters and received no responses.

I was served a summons a couple of weeks ago. I replied, as required, and noted that I never received a response to my letters, which disputed the validity of the debt and requested additional information regarding the account. I even referenced all three letters sent, including dates.

I just received a letter from the attorney, stating they had no record of my letters – letters which were mailed at the Post Office with a return address and in the same manner that the letter to which they replied was mailed. Something is not right!

Now what? Do I send him copies of the letters? What happens when I go to court? Can I avoid court? Am I entitled to any information on this account? And why is it that this is just popping up now, 6 years later? Do I have any rights? Or, do I just show up in court and agree to pay a debt I don’t believe I owe? Also, I received a court date for next month, which is too soon. I need more time so that I can try and gather some information. Can I delay this date?

I read some of your responses to other posts, including one on “hard inquiries,” but I don’t know if they apply here, in Massachusetts. Right now, I am clueless on how to handle this situation and would really appreciate any advice you can offer. Thanks for your time.What is the name of your state?

 

[JETX]

Now what? Do I send him copies of the letters? What happens when I go to court?

Pretty simple. You go to court on the date/time scheduled and present copies of your 'validation requests' (and hopefully, PROOF of delivery!!). Then, you ask the court to dismiss the lawsuit due to their failure to comply with the following FEDERAL law (FDCPA):
15 USC 1692(g):
(b) Disputed debts
If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.

Can I avoid court?

Only if you can get the plaintiff to agree to non-suit the case.

Am I entitled to any information on this account?

See above.

And why is it that this is just popping up now, 6 years later?

No one can answer as to why someone else does something. However, it probably has a lot to do with your state (MA) having a 6 years SOL (Statute of Limitations) on this debt!!

Do I have any rights?

Yes, you have LOTS of them.

Also, I received a court date for next month, which is too soon. I need more time so that I can try and gather some information. Can I delay this date?

Yep. Contact the plaintiff and ask if they will agree to reset the hearing. If they don't agree, then you will have to contact the court (in WRITING) and ask for a continuance.

 

[NewEnglander]

Thanks for taking the time to respond. I greatly appreciate your assistance. If possible, could you answer a few more questions?

1) The attorney who sent me a summons is claiming that he has no record of any of the letters I sent to him. In a recent letter to me he requested copies of the letters. Should I send him the copies? Or, would it be to my benefit to avoid him until my appearance in court?

2) Regarding “proof of delivery, I did not send the (3) letters certified mail. However, I had a household member, very reliable, mail all 4 letters, including the response to the summons. In each instance, the letters were mailed early morning, at the post office, at my request. I was also notified after the each letter was mailed out. The letters had proper postage and my return address (handwritten and legible). The person who mailed the letters was familiar with my situation, the contents of the letters, and their importance. She has offered to provide a notarized statement or appear in court, whichever is necessary. Would her testimony be sufficient proof that the letters were mailed?

3) Regarding the 6 year SOL, when does it begin/end?

4) Since I have no information on this account, and the attorney did not respond to my letters, should I make an effort to find out what I can about this account through the bank? Or, is this irrelevant due to the fact that I am seeking a dismissal?

5) You said I have a lot of rights. Are there any in particular I should know about before going to court?

6) What is the law, here in Massachusetts, regarding “hard inquiries?”

7) What happens if I am denied the dismissal? What is the likelihood?

Again, I appreciate your assistance. I know I have asked quite a few questions, but I am unfamiliar with the process. And, I just don’t want to show up unprepared, including faced with a scenario I hadn’t anticipated.

Thanks

 

[Debt Guy]

Jet will respond for himself -- these are just my thoughts:​

1) The attorney who sent me a summons is claiming that he has no record of any of the letters I sent to him. In a recent letter to me he requested copies of the letters. Should I send him the copies? Or, would it be to my benefit to avoid him until my appearance in court?

Personally, I don't see any harm in sending copies. I presume you will take them to court and the attorney will be entitled to copies at that time anyway.​

2) Regarding “proof of delivery, I did not send the (3) letters certified mail. However, I had a household member, very reliable, mail all 4 letters, including the response to the summons. In each instance, the letters were mailed early morning, at the post office, at my request. I was also notified after the each letter was mailed out. The letters had proper postage and my return address (handwritten and legible). The person who mailed the letters was familiar with my situation, the contents of the letters, and their importance. She has offered to provide a notarized statement or appear in court, whichever is necessary. Would her testimony be sufficient proof that the letters were mailed?

The issue is not proof of mailing. The challenge is to prove they were received. Typically, important documents that you might want to introduce as evidence later are sent certified mail. I don't think your friend's testimony will hurt anything but it might not help.​

3) Regarding the 6 year SOL, when does it begin/end?

In most states the SOL begins to run at the date of first default -- generally that is 30 days after the last payment.​

4) Since I have no information on this account, and the attorney did not respond to my letters, should I make an effort to find out what I can about this account through the bank? Or, is this irrelevant due to the fact that I am seeking a dismissal?

I think more critical is the need to document the fact that this debt has been paid through settlement. An agreement letter and cancelled checks will go a really long way. Otherwise, I would contact the bank and get any information I could. The more you know, the better prepared you will be.​

5) You said I have a lot of rights. Are there any in particular I should know about before going to court?

I'll let Jet respond to this (he won't like my answer anyway).​

6) What is the law, here in Massachusetts, regarding “hard inquiries?”

Inquiries on credit reports are governed by Federal Law -- FCRA and FACTA -- you can read both at www.ftc.gov. Anyone who pulls your credit must have a permissible purpose to do so. Generally, that means people you owe money to can pull your report as well as those you give specific permission when applying for a loan.​

7) What happens if I am denied the dismissal? What is the likelihood?

A dismissal is probable in situations where you can show the plaintiff has no "standing". For example, if you can prove the SOL has expired or if you can prove the debt has already been paid. Otherwise, disputes over facts are what being in court is all about.​

 

[NewEnglander]

Given the following:

"The issue is not proof of mailing. The challenge is to prove they were received. Typically, important documents that you might want to introduce as evidence later are sent certified mail. I don't think your friend's testimony will hurt anything but it might not help."

What can I expect? This is unchartered territory for me. Is this a common occurance in these situations, where the defendent did not send proof of delivery? If so, are the requests for dismissal routinely rejected? Are there other considerations? For example, the fact that three letters were sent, and they claim none were received. Is this a common pratice for PC's to disregard any mail that is not certified...for their benefit?

I'm just trying to get some idea on how these cases are usually handled and whether or not I should request the dismissal. Also, what happens if my request for dismissal is rejected? Is there a judgement at that time?

I thought I had handled this properly. They didn't send their initial letter to me certified mail. So, I just assumed as long as I made a copy, that I could send them my response in the envelope they provided.

Thanks again.

 

[Debt Guy]

Take a deep breath.

I still think your challenge is to be able to prove the debt was previously paid by settlement. What you did or did not send to the plaintiff's attorney as a dispute is not all that important in the grand scheme of things.

I will make the assumption that you can prove the debt was paid. Sometimes the judge will just schedule a hearing in the courtroom and you show up to explain and show him/her your paperwork. Ask the clerk of the court.

If the judge/court does not permit that level of informality, you need to file a response with the court (attach copies of all the paperwork to the response). Your response should ask for dismissal since the debt has already been paid. Talk to the clerk of the court -- sometimes the court will have sample forms on-line for responses. If not, the clerk can show you a sample. The clerk will not give you legal advice but most will try to be helpful if you are polite and gracious.

If you file a response, you will need to serve a copy of this response on the attorney for the plaintiff.

Several things can happen. The plaintiff can dismiss the case. The judge can dismiss the case. If either are not convinced then the case will proceed to the next step.

If you feel like this is over your head, perhaps you want to hire an attorney to represent you.

 

[NewEnglander]

Thanks for the information.

I can't prove that my debt was paid because I have no information on this account, nothing from 6 years ago. It seems rather odd to me that they can send me a bill for any amount without accounting for any of the charges, or providing any information on the account. I can"t move in any direction on this until I obtain information on this account. Is there any way I can get an itemized list of charges that account for the total of amount of the bill, as well as specific information on this account? I find it hard to believe the law allows them to send out bills for any amount without accounting for the charges.

At this time, if it goes before a Judge, it will be specifically to ask for dismissal due their failure to comply with the law, 15 USC 1692(g). If I don't have a leg to stand on because I did not send the letters certified mail, then I will just have to agree to make payments since I have no information/documentation on this account.

You stated in your response that I could file a response in writing to the Judge requesting dismissal. I am a little unclear on something: I already sent a response to the summons (a copy of the letter sent to the attorneys for the plaintiff), stating that I had sent letters disputing the validity of the debt, but that I received no responses. Do I have the option, at this time, to request in writing a dismissal based on the aforementioned. If so, will the decision be sent to me in writing BEFORE MY COURT APPEARANCE?

"If you feel like this is over your head, perhaps you want to hire an attorney to represent you."

It's not over my head, I am just not familiar with the process. As for hiring an attorney...It is not an option at this time due to financial constraints. Which leads me to one more question: Are there legal services offered to people who are unable to afford their own attorney?

Thanks again for your time. You have been very helpful.

 

[Debt Guy]

I can't prove that my debt was paid because I have no information on this account, nothing from 6 years ago. It seems rather odd to me that they can send me a bill for any amount without accounting for any of the charges, or providing any information on the account. I can"t move in any direction on this until I obtain information on this account. Is there any way I can get an itemized list of charges that account for the total of amount of the bill, as well as specific information on this account? I find it hard to believe the law allows them to send out bills for any amount without accounting for the charges.

The law does not allow people to just make up numbers and invoices. Heck, otherwise, I would be sending invoices to every name in the phone book. They must account for the charges -- but, the only way you can make them account is during the court proceedings.​

At this time, if it goes before a Judge, it will be specifically to ask for dismissal due their failure to comply with the law, 15 USC 1692(g). If I don't have a leg to stand on because I did not send the letters certified mail, then I will just have to agree to make payments since I have no information/documentation on this account.

In my opinion, the real issue is not one of sending the letters certified mail. The fact that you asked for verification of the debt is not going to stop the collection (except under limited circumstances). I've never seen a judge dismiss a case based on the failure of the creditor to verify. In my opinion, if there is a violation of FDCPA, then you at best have a counterclaim -- and that is where the issue will likely fail because you cannot prove you requested verification (that certified letter thing).​

You stated in your response that I could file a response in writing to the Judge requesting dismissal. I am a little unclear on something: I already sent a response to the summons (a copy of the letter sent to the attorneys for the plaintiff), stating that I had sent letters disputing the validity of the debt, but that I received no responses. Do I have the option, at this time, to request in writing a dismissal based on the aforementioned. If so, will the decision be sent to me in writing BEFORE MY COURT APPEARANCE?

Now your confusion is confusing me. A "response" is a formal legal document filed with the court -- the fact you sent a letter to the attorney for the plaintiff is meaningless.

Again, in most cases, the creditor is not required to even respond to your dispute. The courtroom is where disputes get settled.

You need to look at the summons and complaint and determine the deadline for responses. If the deadline has not passed, call the court clerk and ask if they have a standard form for a response that denies the debt. If so, great. If not, you will need to go to the courthouse and ask to see a sample of a general denial. You can then copy it and use it as a "go'by" to draft your response. Filing the response timely will slow down the process and then you and the creditor will file more paperwork (answers, interogatories, requests for production of documents, etc)​

"If you feel like this is over your head, perhaps you want to hire an attorney to represent you."

It's not over my head, I am just not familiar with the process. As for hiring an attorney...It is not an option at this time due to financial constraints. Which leads me to one more question: Are there legal services offered to people who are unable to afford their own attorney?

I beg to disagree. All this is over your head. That is not intended to slight your intelligence or ability. All it says is that you do not know what you are doing -- especially when you do not know what the words mean and want to use a inapplicable federal code as grounds for dismissal of a civil case.

If all this were easy, then lawyers would not exist. It is complicated for a purpose.

You might be able to find some legal help. Call your local United Way and ask if they have a member agency that provides free or low cost legal services. If that does not work, call the local bar association and ask for an attorney who will provide services pro bono (latin words that loosely translate as free).

As a last resort, you can buy a handbook on basic legal issues and how to represent yourself pro se (more latin loosely translates as representing yourself). There is a company Nolo that sells a pretty good one (either nolo.com or nolo.org). Sometimes you can find these books at Barnes & Noble. Your local library might have a copy.

I am happy to try to hold your hand through this but strangers on the internet might not be the best tool to rely on.

​

 

[NewEnglander]

"I am happy to try to hold your hand through this but strangers on the internet might not be the best tool to rely on."

While I very much appreciate the information and your time, I am not relying on you. I have spent countless hours looking up laws, visiting other sites, speaking with people, etc., to determine my next course of action. And what I have found is that many people are in the same boat. And it seems the law is set up to cater to the attorneys, leaving alot of folks, like myself, stranded without the know how or the proper representation. The system should not be set up so that you need a law degree or alot of money (to hire a lawyer) to defend yourself. It's not right.

I was confused by what you said because of the following post by JEXT:

"Pretty simple. You go to court on the date/time scheduled and present copies of your 'validation requests' (and hopefully, PROOF of delivery!!). Then, you ask the court to dismiss the lawsuit due to their failure to comply with the following FEDERAL law (FDCPA):
15 USC 1692(g):
(b) Disputed debts
If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector."

That does seem pretty simple to me. I guess it's not.

Thanks again.

 

[Debt Guy]

Sigh.

Jet is assuming you sent the request for verification within the required 30 day window. He is also assuming that you can prove such. He further assumes the local county judge will know what the heck you are talking about and agrees that the failure to respond to the dispute warrants a dismissal (of which I am not convinced since I still think that the FDCPA violation, if it exists, is only a counterclaim).

Send Jet a PM and let him explain.