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Hearing on Credit Card Debt Lawsuit

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  • 08-18-2008, 02:52 PM
    idahomark
    Hearing on Credit Card Debt Lawsuit
    My question involves collection proceedings in the State of: Idaho

    I am being sued by a credit card company. This is not my card.
    I have filed reports of identity theft with the local police department and FTC.
    I filed my response with a sworn denial and copies of the reports.
    In addition to this I filed with the lawyer a validation request.
    The lawyer did not respond within 30 days so I filed a motion with the court to dismiss based on the fact that they had not validated the debt.
    The lawyer responded back asking for summary judgement based on fact that they had sent an initial letter (that I never received), and a copy of an email that was allegedly from me (which I never sent - and the font and signature on the email do not match my email), and an affidavit from the Credit Card company that states that the account is mine (only refers to me by name, no other information).

    I have been trying since I received this last response from the lawyer to hire a lawyer to defend me with no success. I now just have two days to find someone!!!

    But, maybe you guys can answer a couple of questions in the meantime...

    1. What holds more weight - their affidavit or my sworn denial?
    2. How would you go about fighting this email?
    3. Doesn't a lawyer fall under the terms of the FDCPA even though they are representing the bank who issued the card?

    I'm obviously going to the hearing on Thursday, but I don't know what my rights are at this time.

    Thanks!!
  • 08-19-2008, 09:12 PM
    LawResearcherMissy
    Re: Hearing on Thursday
    Quote:

    I have filed reports of identity theft with the local police department and FTC.
    I filed my response with a sworn denial and copies of the reports.
    Take these documents to court with you, as well as a copy of your request for validation. It's up to them to prove that the account is yours

    Quote:

    and the font and signature on the email do not match my email
    Unlike handwriting, this is much more easily changed. You can do this in about 3 clicks. This will hold no weight, so don't even mention it.
  • 08-22-2008, 11:02 AM
    idahomark
    Re: Hearing on Thursday
    Thanks for the response....

    I wanted to give an update:

    Guess what - the other lawyer turned the thing around and got the judge to do a summary judgement ruling on the case during my hearing for dismissal. Apparently in some cases, it doesn't matter whether they can prove you owe it or not....they'll just take it from someone!
  • 08-22-2008, 11:23 AM
    seniorjudge
    Re: Hearing on Thursday
    Quote:

    Quoting idahomark
    View Post
    Thanks for the response....

    I wanted to give an update:

    Guess what - the other lawyer turned the thing around and got the judge to do a summary judgement ruling on the case during my hearing for dismissal. Apparently in some cases, it doesn't matter whether they can prove you owe it or not....they'll just take it from someone!

    Did you fail to answer their discovery requests?
  • 08-22-2008, 11:40 AM
    idahomark
    Re: Hearing on Thursday
    I had not yet responded to their discovery request, although I did respond to their first set of interrogatories and request for admission of guilt (I think that was what it was called). Discovery was not even brought up during the hearing.

    Total time for my hearing was about 5 minutes. Basically we walked in, the judge said "have you two tried to work out an agreement", she sent me and the lawyer out of the courtroom, we agreed that we couldn't agree. I argued the basis of my filing of motion to dismiss was the fact that the lawyer had never validated the debt. The lawyer argued that since it was an original creditor, they did not have to (even though the Supreme Court ruled that if a lawyer normally does this type of work and they are not an employee of the original creditor they are still bound by the FDCPA - I quoted the that to the judge). The judge agreed with their lawyer and basically said that I had no defense (even though I had FTC and local police filings in her hands - along with a sworn denial) - so she ruled in their favor.
  • 08-22-2008, 12:12 PM
    Mr. Knowitall
    Re: Hearing on Thursday
    You seem to misunderstand the law. The law is not that a lawyer who represents creditors in court is akin to a collection agency under the FDCPA. It's a lawyer engaged in collection efforts that are akin to those of a collection agency, e.g., sending out consumer collection notices. The lawyer can sue debtors all day and all night long, without the FDCPA having any application.

    If your only defense to the debt was, "The lawyer's the same as a collection agency, so they violated the FDCPA", that's no defense at all.
  • 08-22-2008, 12:28 PM
    idahomark
    Re: Hearing on Credit Card Debt Lawsuit
    Ok, well that makes sense to me now...However, that was not my only defense. That was simply the reason for the motion to dismiss.

    I had submitted police and FTC filings on identity theft, sworn denial, etc. Beyond that, what can I do to "prove" that a debt is not mine. It never showed up on my credit report, I've never received a bill. The lawyer submitted a copy of a demand letter (which I never received, but the judge wouldn't take that for an answer and didn't require proof of delivery), and an affidavit that listed my name (and nothing else) as applying for this card and defaulting on it. In addition, they had a copy of an email that appeared to be from me (I've spoken to a couple of IT security managers and through research myself have found that this is VERY easy to fake). Based on the fact that I did not receive the demand letter, I could NOT have sent this email.

    What I feel like through this whole thing is that I was guilty until proven innocent - and the judge basically ignored any arguement I had against the debt being mine. I was judged before I even hit the courtroom.
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