[atlmiss]

Hi All, Hoping for some advice!

I was served papers that I am being sued by a collection agency (Portfolio Recovery Services) here in Georgia for $5,928.00 for an old credit card debt that I dispute the amount of.

Background- I was hit by some very hard times 5 years ago and entered into a debt consolidation program. From what I understood, the consolidation company was going to pay the credit card (Providian) a monthly amount and Providian would close my account and I would not incur any fees, besides interest. Later, I discovered they not only took payment from the consolidation company, but also kept the account open and charged me an over-the-limit and late payment fee each month; which obviously made the amount I owed significantly increase. They claim they never accepted the arrangement from the consolidation firm. When I discovered this, after many arguments with both the consolidation company and Providian, I simply refused to pay both as I felt I did not owe all the debt, the consolidation company was corrupt etc. and then I ignored them. Which I know was a total mistake, but at the time I was completely broke, job-less and under a lot of stress as I became the long-term caregiver for a dying, very ill parent and... well, I just basically dropped the ball on pursuing it further.

So now I am finally working a stable job and at a place I can pay my bills, rent and a car payment on an old car that I was only able to finance with a co-signor (my father). I own 15% of the car at this point. I rent my home and have nothing else of value. During that bad time I had defaulted on a student loan and am currently having my wages garnished 25%, which will be paid off by the end of the year.

I guess I had hoped that the credit card debt would get written off eventually but lo and behold I am being sued! Looking at my credit report I believe it is one month before the SOL expires, which from what I can tell may have been the date of my last payment to the consolidation company which then paid Providian. The amount I originally disputed with Providian was around 4000. The balance I believe I owed without the questionable fees was around 2,000. Now I am being sued for 5928.00!

So my questions are:
From what I can tell looking at previous posts I need to file an "intent to defend" with the court in person and then I am given a trial date. Is a "motion of discovery" sort of like a debt validation request? As I said before I do not believe I owe the entire amount so I am disputing this.

Basically I am planning on answering this because I do not want a default judgement. I do not want to pay the whole amount if I can get out of it. And unfortunately, with my wage garnishment, I do not have a block of cash to offer up as a settlement. If worse comes to worse I could do a payment plan but would like to settle a much lower amount.

So, first things first I need to answer the summons. On the average how long is it between the answer and the actual court date?

How do I ask the collection agency to prove I owe the debt and is it after I file the intent to defend or do I have to ask for proof with it? Can they usually prove such things?

Does the SOL apply if the court date is after it expires?

Basically what are my options?

I am not yet in the place where I can afford a lawyer so I may be taking this on myself. Apologies of this has been answered a zillion times but I have been looking though previous posts and going cross eyed!

Thanks to all who respond in advance!

[ScottGem]

Ok first, the debt most likely HAS been written off. But that has no effect on you. It simply means that the original creditor took a loss against taxes for the balance. It doesn't mean you aren't obligated to pay.

Second, you don't have to file a motion to defend in person, you can mail it. But check with the court first.

The SOL refers to the date they file, not the date of trial. After you file your motion to defend a copy goes to the creditor requesting documentation.

[atlmiss]

Second, you don't have to file a motion to defend in person, you can mail it. But check with the court first.

Thanks Scott for your quick reply!
I believe it said I could mail it but it would have to be notarized. Is there a standardized form that is usually used for this? And do I write in the motion, that I request verification or proof that I owe the total amount? Sorry I have never done this before!

The SOL refers to the date they file, not the date of trial. After you file your motion to defend a copy goes to the creditor requesting documentation.

Oh well guess they got it in at the last minute then! I am pretty sure they will count the consolidator payment as the date of last activity on the account which was 06/03.

[ScottGem]

You can search on Intent to Defend and find generally formats. But all that is necessary is your statement that you intend on defending and to request a court date. You send a copy of that to the creditor with your request for verification.

[atlmiss]

You can search on Intent to Defend and find generally formats. But all that is necessary is your statement that you intend on defending and to request a court date. You send a copy of that to the creditor with your request for verification.

Thank you! So do I need to file any motions with the Intent to Defend... such as the "motion of discovery" I have read about? Also is there a specific form I need to use for "request for verification"? I am going to search for both.

What happens afterwards... is the collection agency required to prove the debt to me once I ask for proof prior to the trial date? And how do I prove that I asked them? I assume I need to ask for a contract, a list of charges etc. and what they paid for the debt. I have read that usually a lot of these collection agencies don't have such proof as they usually buy accounts in bulk.(?) but I know not to count on that. I am trying to dig up old bills to prove that I don't owe that much on my end... but it has been a long while (and several moves)

Oh and one more question to add (sorry!) I would be happy to set up a payment plan on the amount I do owe... are payment plans sometimes possible after a summons /judgement, even this late in the game? My wages are already being garnished the max but I am really fearful of losing my car/having my bank account frozen etc. if the judgement is against me!

Thanks again!

[ScottGem]

You can file a motion for Discovery the purpose of which is for them to produce their proofs.

Once they get a judgement they have little incentive to settle. The time to offer to settle is before you go to court.

[atlmiss]

So, since my original posting, I have answered with my intent to defend and , and in my answer demanded proof of the debt. I received a notice of a hearing in magistrate court on July 12.

A lawyer I consulted with on the phone said I shouldn't get a subpoena for the documents because it would be best for the collection agency to think they are going up against someone who doesn't know what they are doing and not give them time to produce any documents, that they will probably not bring documents to trial. He also said I could probably just go to court myself, because he'd be doing just about the same thing as he advised me to do. (and then retain him if I lose and go to state court) His fee was pretty high so I'm still weighing if if should have him appear to this hearing or not.

So after talking to him, this is my plan as of now:

1) Deny the debt is valid. Say as far as I know the debt consolidation company I signed up with paid them off (which they should have). Demand to see a signed contract and proof/statements etc. State that I had already sent a debt validation letter and never heard back.

2) If the plaintiff isn't there but the attorney is, motion to dismiss on that basis.

3) If I lose, file for an appeal that day for a jury trial.

So my question is when I am up there before the judge is there a specific wording I should use to demand the contract? And if the plaintiff isn't there, what should I say exactly?

Also , if I do lose and file for an appeal, can they freeze my bank account, or garnish my wages right away with an appeal pending?

I am at a complete loss and nervous of representing myself or saying the wrong thing!

Thanks to everyone for your advice!

[ScottGem]

Ok, First I disagree partially with the advice you received. What will most likely happen if the plaintiff doesn't show and/or they don't have the documents is a postponement. Then the next time they will come prepared.

As for what to say, don't worry about legalese. This is small claims court and its more informal.

[atlmiss]

Thanks Scott! Apparently I have to spread some reputation around before giving you an official helpful rating!

Well, even if its put off, I am not sure if they can prove all the debt, seeing as how the majority isn't mine! Boy I wish I had all the paperwork on my end. Between five years, and three moves (one cross country) a lot of things got lost.

So if it's postponed, well at least it will give me more time to build my defense.
Thanks again!

[atlmiss]

Ok another question!

I sent the collection agency a debt validation letter when I got the summons, and in my answer to the court I stated I demanded strict proof of the debt.

I haven't heard anything, which doesn't surprise me, but the problem is I didn't send the letter certified.. will this hurt me in the trial? It is only about 18 days from now .

Should I send another one today certified and state in the letter that it is my second request?

One attorney I spoke too said that my answer was enough, that I was asking for validation. Though that was the one I wasn't too sure about.

I haven't heard a peep from the lawyer on this case and her address is a p.o. box so I can't send her certified mail... Oh and this may or may not be relevant, but the attorney I spoke with found it very interesting there were no lawyers fees asked for on the summons..

Thanks in advance!

[ScottGem]

If you can't send certified then you have an excuse.

You could send a follow-up noting the original letter.

[atlmiss]

So I finally got a response to my second request for validation.

I was sent an envelope containing copies of some credit statements from when my credit card went into default (which was after I had disputed with Providian about them applying payment from my debt consolidation company and doubling the amount I owe) The statements don't show any purchases just the doubly inflated amount of the original debt. These statements are just from the year before they bought the debt, at that point I had already been in debt consolidation a year or two. There was no contract or assignment letter included.

Along with the statements there is a letter from Portfolio Recovery with a phone number to contact to "settle this matter or make some arrangements before the trial date". I would like to call them and see if they will negotiate.. but not sure what to say! A good outcome for me would be to knock the debt down closer to what I owed, plus some interest which would be closer to 3000.00 instead of the 6000 they are suing me for. But unfortunately, since 25% of my pay is already being garnished to student loans, until the loan is rehabilatated, I don't have the money to pay a settlement amount up front and be done with it. I would have to offer a payment arrangement and see if they take it. Once my garnishment ends, which might be soon, I would plan to pay them even more.

So I am preparing myself to call them... what should I say to them? This will be my first communication with them. Should I ask again for the assignment letter? Should I ask how much they paid for the debt? Are those statements proof? If they won't negotiate with me is that something I try to do with the judge or should I just do what
I originally planned, show up to court, see if the plaintiff shows up, demand a contract and/or ask for a payment plan?

Once again, I do feel morally obligated to pay what I owed, but not triple that amount!

The trail is next week and my head is spinning! Thanks in advance, all of you have been of great help with your advice!

[ScottGem]

I wouldn't call, I would do eveything by mail. You can offer to settle, but, unless you can offer a lump sum settlement, they might not go along.

The fact, though, that they didn't send a copy of a contract, bodes well for you in court.

[atlmiss]

Scott-well the trial is next week , so not a whole lot of time to do mail! Are you suggesting I don't call and do mail just so I have a paper trail or so as not to say anything to incriminate myself?


Any suggestions on what to say in court regards to the contract? Do the statements count as any sort of validation?

Thanks again!

[ScottGem]

I don't think they will. If you want to call to sound them out, go ahead but agree to nothing unless they put it in writing.

[atlmiss]

Well Scott I took your advice and didn't call them, I figured that I should just go to court on Thursday and see what they have on me. For all I know they may not even show up , since the company is located in Virginia.

Couple questions:
If someone does show up as "an authorized rep. of the company" how does the court know that they are who they say they are? What makes someone authorized?

And the credit card statements they sent (which were fax copies by the way), from the few months before they allegedly bought the debt, wouldn't qualify as proper debt validation in the eyes of the court then? I asked for a contract and proof I originally owed that amount to Providian, and as I said didn't receive any sort of statements with charges I made on them...

Thanks in advance!

[ScottGem]

They will need some identification or authorization from the creditor. This could be an employee ID or a letter of authorization on company letterhead or something similar.

They have to prove you incurred the debt and they have a right to collect it.

[atlmiss]

Well, I went to the court today with all my evidence, my list of questions to cross examine the plaintiff, all my research and waited for my time to appear before the judge.

The judged called me and the collection agency up and lo and behold the plaintiff was'nt there, just the lawyer!

The trial went as follows:
Judge: Why are we here?
Lawyer: Your honor my client claims the defendant owes &XXX principal and $xxxx interest on the account which was bought and not paid.
Judge: Do you have a contract or any sort of proof?
Lawyer: I have these statements from 2003 that my client faxed over to me this morning
Judge: Thast all you have?
Lawyer: Yes
Judge (turning to me) So I am assuming that you are denying that you owe them this money?
Me: Correct
Judge: Do you have any questions for the lawyer?
Me (turning to lawyer)Do you have the contract I signed with the original creditor?
Lawyer:No
Me: Do you have payment history or anything else on the account?
Lawyer: No
Me: Are you the plaintiff?
Lawyer: No, Your honor this was all I could get and I couldn't get the plaintiff to show up
Me (to judge): Your honor, I was expecting the plaintiff to be here to cross examine
Judge: Well that's what I am about to get to.. judging from what's here (to lawyer) You don't have much of a case... so I am going to have to file against you

SO I WON!!

Whew! He then goes on to tell the lawyer and myself all the facts about them having the right to appeal within 15 days and to me how it might not be over if they do appeal, but from what I can tell they don't have any evidence against me, what would be the chances of them going through the cost of an appeal. And how could they have anything to prove, cause I don't owe them all that money! So hopefully this is over.

THANKS SO MUCH TO ALL THOSE WHO GAVE ADVICE IN THIS CASE!! YOU HELPED ME SO MUCH!

And to anyone who is reading this that is in the situation I was, PLEASE ANSWER AND GO TO COURT! Before I went up there were loads of default judgements being granted to collection agencies before me because the defendant didn't show up. The worst thing that can happen is you lose! AND IF YOU Don't SHOW UP YOU WILL LOSE!

THANKS AGAIN!!

It's now time for happy hour;-)

[ScottGem]

I am so happy for you and your experience will help as many people as our advice has.

Most of these collection agencies live on default judgements. They bank on debtors trying to hide. But most of the time, they don't have the documentation to win if the debtor stands up to them.

As you said, the worst that can happen is you lose, but if you don't show up you lose anyway.

[Junction]

I am in Georgia and was served today by Chase for a credit card debt they say is $13,000. (Chase is also my mortgage holder).
What can they do to me and what is most likely? Can they do more than garnish my wages? I only bring home $600 every two weeks (outside of cost of housing) and that's before food, utilities, gas, etc.
Much of the debt is obscene interest and the other primary portion is for legal representation in an enployment discrimination case.
What would you suggest I do?

Thanks,

Adolphus