AboutCreditwrench Expertise Debt Collections law, Fair Debt Collection Practices Act (FDCPA), Fair Credit Reporting Act (FCRA), federal law, how to properly answer court summons for collection cases, how to prepare federal cases against debt collectors, how to deal with debt collection phone calls.
Experience I've been an active consumer advocate for more than 40 years and have helped hundreds of people win cases against debt collectors as well as helping them defeat demands for summary judgment lodged against them by banks, debt collectors and defeat mortgage foreclosures and keep their homes.
Education/Credentials Paralegal courses for the most part. I have been teaching people how to deal with judgments, mortgage foreclosures and other such problems both on and off the internet for many, many years. I am a Richard Cornforth information provider ever since 2000 and worked with many other organizations and causes since 1980. I was Oklahoma State Chairman for the nationwide drive to defeat the Constitutional Convention which was proposed by various factions within our federal government such as the Council of State Governments and the National Organization of State Governors who were working hard to organize a Constitutional Convention to be held in 1995 for the purpose of rewriting our American Constitution to be more acceptable to the United Nations. I worked with Senator Charles Duke of Colorado and Senator Don Rogers of California and many others across the nation to keep them from getting the number of delegate states required to lawfully hold a Con-Con and we were successful. I have worked with many other legislative issues in Oklahoma and have always been very successful.
Expert: Creditwrench Date: 8/25/2008 Subject: Summons/SOL for NM Passed/Now Live In OR
Question Hello~
I will do my best to state the facts clearly & succinctly as I am in need of advice:
Had a free consult with a lawyer c/o recently received a summons from an attorney for a "debt." 30 days given to respond.
@ The plantiff is LVNV. Looks like something they bought from Sears Nat'l Bank. Debt dated as being in or from 2003. Imagine that would have to be the last time whoever really has the debt was last active with the account.
@ I had a Sears card many years ago (well over 10 years ago) but no longer have this card or any debt on/from it.
@ Outline:
@ I moved to Oregon, where I live now, in October last year (2007). From New Mexico. SOL for Oregon: 6 years. SOL for New Mexico: 4 years.
@ Did not find a place to rent/an address until December, 2007. This is where I was recently handed papers by the process server.
@ Papers served were apparently filed (?) in a county different from the county I actually live in. Their attorney is even further away by at least 5 hours.
@ I am currently on SSDI (Social Security Disability Insurance). Hope/plan to not be on it forever but this is where the money for living expenses is coming from these days. Less than $1,000/mo.
@ I do not own anything valuable. Co-own a car with a family member who does not live with me. The attorney I consulted looked it up...blue book is low enough to disqualify it from being taken away.
@ My neighbor's dad is a consumer lawyer and told him I should not ignore this.
The attorney I saw said:
- they have no jurisdiction due to the different county issue. that I would have to have incurred the debt or defaulted on it in that other county.
- cannot garnish my SSDI or take my car [see above].
- he thinks it's possible they got my name & address from the DMV? (my first and last name were on the papers but not my middle initial, which I usually always include with bank information. I wonder if this could help?)
- if I ignore it a judge could rule in favor of the plaintiff anyway, by default, after 30 days.
- that I could file the legal papers needed to respond with the court down there or write a letter (Certified Return Receipt). But that if I do that then they would then actually have jurisdiction.
- that I could also try and handle it out of court & send a letter to the plaintiff's attorney outlining that the debt is not mine, I have never lived in that county, am on a limited SSDI income, that I do not own anything.
The lawyer I saw knows I am receiving SSDI & is willing to take my case (paperwork, phone calls, etc.) on a handshake (really?) for what might result in around $300 or so and would take monthly payments. Of course a trial would cost more. I do not want to go to trial or be indebted to an attorney but I will keep an open mind.
I'm not new to posting on credit forums but it has been some years since I've been active on any of them. And I have never dealt with anything like this before at all. So I'm unclear about the exact approach I should take.
My bottom line is I do not want any negative items placed on my credit file. I've ordered a 3-in-one report from the free annual service. I expect it should be here within the next 2 weeks.
I just remembered, too that I have a letter from the Federal government student loan office stating I no longer have debt, retroactive to 2004, due to my disability status. Meaning that at least since then I am legally not able and not indebted to pay what was once the remainder of the student loan balance. Should I send a copy of this along with the letter to the attorney or to the court? Considering doing that but with my SS# blocked out.
Also, does anyone know:
Does a summons sometimes come from an attorney's office? Words like "summons" and "appear" as in 'appear in court' were all surrounded by quotations marks, like how I typed them above. Is that normal? The contact info on every page is not for the court but for the attorney's office.
When I spoke to legal aid before I saw the private attorney they said they could not help with a case like this. But they also said that the papers should have been in an envelope from the court. And that is would have the state of Oregon logo on the front page at the top. Would this be accurate? Can the attorney draw them up himself?
At the end of the last page the notation says "this is from a debt collector." But then wouldn't the private lawyer I saw know if it was a legitimate document? He was young/relatively new but says he also deals with the consumer credit cases of other everyday people, like me.
I know this is long so I appreciate you reading this post~
Answer @ The plantiff is LVNV. Looks like something they bought from Sears Nat'l Bank. Debt dated as being in or from 2003. Imagine that would have to be the last time whoever really has the debt was last active with the account.
The complaint should tell you who you owed the money to.
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@ Outline:
@ I moved to Oregon, where I live now, in October last year (2007). From New Mexico. SOL for Oregon: 6 years. SOL for New Mexico: 4 years.
So the debt is outside the statute of limitations for either state.
Of course they can file a lawsuit regardless of that.
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@ Papers served were apparently filed (?) in a county different from the county I actually live in. Their attorney is even further away by at least 5 hours.
You need to file a motion to dismiss for lack of geographical jurisdiction. You have to give your correct address and the court will probably have it transferred to your county. Once it gets moved to your county file a SOL defense as your response.
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@ I am currently on SSDI (Social Security Disability Insurance). Hope/plan to not be on it forever but this is where the money for living expenses is coming from these days. Less than $1,000/mo.
Well, they can't garnish that even if they do get a judgmnet.
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@ My neighbor's dad is a consumer lawyer and told him I should not ignore this.
He is quite correct. Don't ignore it.
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The attorney I saw said:
- they have no jurisdiction due to the different county issue. that I would have to have incurred the debt or defaulted on it in that other county.
No, not correct. It makes no difference where you contracted the debt. What counts is where you live now.
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- cannot garnish my SSDI or take my car [see above].
True
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- he thinks it's possible they got my name & address from the DMV? (my first and last name were on the papers but not my middle initial, which I usually always include with bank information. I wonder if this could help?)
Maybe
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- if I ignore it a judge could rule in favor of the plaintiff anyway, by default, after 30 days.
Yes. quite true
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- that I could file the legal papers needed to respond with the court down there or write a letter (Certified Return Receipt). But that if I do that then they would then actually have jurisdiction.
No, but just writing a letter isn't the way to do it.
Motion to dismiss for lack of geographical jurisdiction.
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- that I could also try and handle it out of court & send a letter to the plaintiff's attorney outlining that the debt is not mine, I have never lived in that county, am on a limited SSDI income, that I do not own anything.
You can try but it probably won't do any good.
____________________________________________
The lawyer I saw knows I am receiving SSDI & is willing to take my case (paperwork, phone calls, etc.) on a handshake (really?) for what might result in around $300 or so and would take monthly payments. Of course a trial would cost more. I do not want to go to trial or be indebted to an attorney but I will keep an open mind.
I'd run from that fool. You can do it all yourself and get the same results. No biggie.
______________________________________________
I'm not new to posting on credit forums but it has been some years since I've been active on any of them. And I have never dealt with anything like this before at all. So I'm unclear about the exact approach I should take.
I just told you the exact approach you should take. Ask your neighbor's father and you will find out I am right.
__________________________________________________
I just remembered, too that I have a letter from the Federal government student loan office stating I no longer have debt, retroactive to 2004, due to my disability status. Meaning that at least since then I am legally not able and not indebted to pay what was once the remainder of the student loan balance. Should I send a copy of this along with the letter to the attorney or to the court? Considering doing that but with my SS# blocked out.
That won't do you any good.
_____________________________________________
Also, does anyone know:
Does a summons sometimes come from an attorney's office? Words like "summons" and "appear" as in 'appear in court' were all surrounded by quotations marks, like how I typed them above. Is that normal? The contact info on every page is not for the court but for the attorney's office.
Don't sound real normal to me. Are there any court stamps on the papers?
________________________________________________
When I spoke to legal aid before I saw the private attorney they said they could not help with a case like this. But they also said that the papers should have been in an envelope from the court. And that is would have the state of Oregon logo on the front page at the top. Would this be accurate? Can the attorney draw them up himself?
Probably quite true.
_____________________________________
At the end of the last page the notation says "this is from a debt collector." But then wouldn't the private lawyer I saw know if it was a legitimate document? He was young/relatively new but says he also deals with the consumer credit cases of other everyday people, like me.
Don't sound to me like he is very smart.
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