Expert: Creditwrench - 5/12/2009

Question
QUESTION: I received a summons from a CA for an old credit card debt.  They attorney claims to be collecting on behalf of the original creditor, and sent a signed statement to that effect with the summons.  The account is charged off, the original creditor is MBNA, who no longer exists, and the CA said to make payments out to their office, not the OC.  This seems to indicate that the CA bought the account, and is collecting on behalf of themselves, not the OC.  If that is true, wouldn't that make the signed statement alleging they are collecting on behalf of MBNA a false statement?  Before receiving the summons, I twice requested debt validation, by certified mail, which I did not receive.  I have a case management meeting coming up soon.  Is that the best time to motion for discovery, or should it be done before hand?  Thank you.

ANSWER: You say that it is an old credit card debt so the first thing that comes to mind is a SOL defense. So what state do you live in and when did you make your last payment to MBNA? Then, of course, discovery should have already been started at the same time you filed your response with the court. Another question that I have is how much are they trying to sue for? That can be important to know as well because that tells whether you are in small claims or district court. If you are in small claims you may not be able to engage discovery. That depends on your state rules of civil procedure. So lets find out the answers to those questions and then go from there.


---------- FOLLOW-UP ----------

QUESTION: I live in MA.  I haven't made a payment to MBNA for probably over six years, but I was paying another collection agency, so I think the SOL started over.  I think this agency then sold it to the current collector.  I filed my answer promptly with the court, then received a letter stating I had a case management meeting in June.  I haven't heard anything else, like requests for discovery.  I don't believe the CA has any documentation.  Also, it's district court, not small claims court.  Is there any other info I could give you that would help?  Thanks for getting back to me.

Answer
You should not be just sitting there letting things happen. You need to make things happen to them. You need to send them a nice list of admissions and after they answer those send demand for production of documents based on their answers to your demand for admissions. If the answers are not satisfactory you may need to file a motion to compel them to answer. You should also be getting a list of their violations together so you can haul them into federal court. Another thing you might do if they don't come up with the answers is to file a motion for summary judgment against them. Take the initiative and don't be on the defensive. You should also be preparing for what you will do to protect your assets in the event they get a judgment against you. You are not defenseless unless you sit back and don't start taking some action.