Legal Question in Credit and Debt Law in California

I have had Discover Card/ Bank threaten me w/ a suit for breach of contract/$ had & received through Mann Bracken LLP (or "MP" filed 12/2008 and closed w/out prejudice 7/2009). Then, Mann Bracken went out of business around 12/2009 because of underhanded dealings with a lot of major creditors including Discover Card/Bank to set people up on phony ADR traps designed to increase MB and its clientele's revenue. When I saw that the suit was closed on the Santa Clara, CA County Superior Court case info website, I thought that it was over and done w/. So, I didn't take care to preserve evidence. such as voicemails, phonelogs, etc. Also, the computer on which I had stored all scanned or written files pertaining to the case was lethally corrupted recently by viruses. I am now at a loss for evidence to defend my case, since Discover sent me thru NCO in Oct. 2009 and now Legal Recovery Law Offices Inc. (of San Diego), which personally served me w/ a summons for same as above on 4/6/10.

My question is "what affirmative defenses, other than the Doctrine of Laches, could apply when I file an Answer to their Summons and Complaint?", and "does it apply here if Discover claims that they were wishy washy and didn't follow thru w/ their first suit because MB went bankrupt 12 months after it was initially filed w/ the Court?" Under laches, I've been prejudiced by their delaying tactics because information and evidence is no longer available to defend my case. Considering that Discover was in the know that Mann Bracken was underhanded, don't they have the ethical and legal obligation to transfer the case to another better law firm in a timely manner, rather than wait 15 months on it (and w/ the same species of underhanded commercial collection law firm as before no less)? Discover has more than enough resources to facilitate a resolution w/ me. but ignored my letters requesting that their collectors validate the debt w/ secondary documentation (than their form letter/demand for payment) and cease and decist calling me incessantly. Instead, they are trying to force this into Court to effect a default judgment or attorney's fees should they win at trial. Why should I trust LRLO any more than MB? Discover had, shortly after I made a transfer balance based on a flyer advertisement, increased my interest rates without reason, explanantion, and against the agreement. As the account was started 9 years ago, I've lost track of all the paperwork because I've lost my house, and had to move several times. Therefore, is it unreasonable for me to ask them to produce said documentation so that I can review what they're talking about in their summons when they talk about the "terms and conditions of the written contract entered into by debtor and creditor"? They have yet to produce any such validation of debt other than a short form letter, stating that each of the law firms checked w/ Discover, and yes, the amount indicated is correct. I have to file an Answer to prevent a default judgment, and as a bargaining chip for them to settle out of court. I wanted to know if I had a leg to stand on based on the affirmative defense of Laches and whether you know of any other affirmatifve defenses that apply here? Thank you in advance for your patience and assistance on this matter.


Asked on 4/24/10, 4:53 pm

1 Answer from Attorneys
Grenville Pridham Law Office of Grenville Pridham

When did you make the last payment on the account? When was the complaint filed? There may be a statute of limitations defense. The date of default is typically 30 days after your last payment. The creditor has four years from the date of default in CA to file its complaint.

Were you sued in the county where you reside? Under the Fair Debt Collection Practices Act, a debt collector must sue you in the judicial district where you reside or where you signed a written contract.

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Answered on 4/29/10, 10:24 pm


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