Legal Question in Credit and Debt Law in California
Do I have a case and what are my chances?
Question: What are my chances if I go to court?
Case Summary:
* May 2006 I was contacted by a collection agency about an old credit card debt. 3 1/2 years old.
* June 2006 (within 30 days)I responded asking for debt validation. Collection agency never responded.
* November 2006 I found a complaint laying in my flower bed.
* I called the attorney representing the agency and they claimed I was served three weeks earlier.
* I filed an answer (within the 30 days of the alledged service)to the lawsuit claiming:
1. Improper service. I enclosed bank statements showing purchases I made out of town on the day and time of service.
2. Collection Agency never sent validation. I enclosed my letter to the agency in June.
3. Improper amounts. In their May letter they asked for around $20k, their website asks for $23k and the lawsuit asks for $15k.
* When I filed the answer, I also looked insided the case file and found the person allegedly served was 57 years old, gray hair, 5'10'', 180lbs and had brown eyes. I am 42 years old, blond, blue and 5'8'' and 165lbs. I had no time to include this info into my answer.
*January 2007, received a letter from Plaintiffs attorney who now wants to discuss case.
3 Answers from Attorneys
Re: Do I have a case and what are my chances?
I have found that, often, collection agencies don't have the underlying documents to support their claim. That would prevent them from presenting evidence of the debt. Given the facts, there also might be a statute of limitation problem with the complaint. With a good attorney, you might be able to convince the plaintiff's lawyer to dismiss the case. By answering a complaint, a person waives the issue of defective service. Good luck.
Re: Do I have a case and what are my chances?
You filed an answer to the complaint, so you have waived any defects in the service of the summons and ocmplaint. That issue also has no bearing on whether or not you owe the money.
Collection agencies will often add interest or other amounts to a demand letter that are not fully itemized. Now that the lawsuit has been filed, you can demand a full itemization through discovery.
Settlement negotiations never hurt, but document everything in writing.
Finally, the collection's agencies conduct in ignoring your validation request might be grounds for a claim under the federal Fair Debt Collection Practices Act. There maybe other grounds for such a claim as well. Your best bet is to find a local attorney who handles debtor's rights for a further consulation.
Re: Do I have a case and what are my chances?
Mr. Cohen and Mr. Starrett gave you good advice. You have waived any defects in service. Your answer may also have waived any FDCPA violations. You should talk to an attorney and have someone review your case. You can learn more about the FDCPA at www.californiadebtblog.com
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