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Jack R.
Jack R., Lawyer
Category: Consumer Protection Law
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Experience:  Court Mediator, foreclosure attorney
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Im being sued by a debt collector for a credit card debt that

Customer Question

I'm being sued by a debt collector for a credit card debt that is 5 years old. I live in Indiana and I am curious what materials must be provided by the plaintiff in order to show "legal standing" of the debt. The plaintiff's attorney did provide three "bill of sale and assignments" as the debt passed from the issuer (Citibank) in 2010 through three debt collection agencies. They also provided a generic copy of my account statement with Citibank. It has my name and account number on the original statement, along with a balance that exceeds my credit limit by $700. They did not provide any proof of purchases or statement history within the account, just the balance that exceeded the limit. They did not provide a promissory note or any other agreement with Citibank and myself that had my signature or my approval in anyway.

Is it possible for me to show a lack of standing based on the materials the plaintiff provided? Regardless of my response for summons I'm going to attempt to settle outside of court with the collection agency acting as the plaintiff, but I'm looking for a strategy for how to respond to the summons by the county prosecutor. I had not been contacted by collections on this account prior to my receiving the summons, which was delivered by mail to a previous address of mine, and forwarded to me by my previous landlord two days after the summons was issued. Please advise!
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  Jack R. replied 1 year ago.
Thank you for choosing Just Answer.

 

The summons requires you to attend a hearing on the collections matter. At this hearing you can ask the court to dismiss the case for violation of the FDPCA section 1692. Lack of standing can be raised, but it is likely the debt collector either has a contract to collect the debt, or has purchased the debt. A more viable approach maybe violation of the Federal Debt Collection Practices Act.

 

 

There are specific requirements all debt collectors must follow under the Federal Debt Collectors Protection Act (FDCPA).

 

 

The FDCPA, prohibits debt collectors from making false or misleading representations and from engaging in various abusive and unfair practices. See 15 USC §§ 1692

 

The act sets forth rules by which debt collectors must abide in the collection of debts. For example under the rules, the debt collector must disclose to the debtor that he or she is "attempting to collect a debt and that any information obtained will be used for that purpose." See 15 USC § 1692e(11);

 

Under the FDCPA within five days of the initial communication to the consumer the debt collector must provide the debtor with "validation notice" which includes the amount of the debt, the name of the creditor to whom the debt is owed, and a statement that unless the consumer fails to dispute the debt,within 30 days, the "debt will be assumed to be valid by the debt collector." See 15 USC § 1692g (a)(3).

 

The initial communication must also include a statement that tells the consumer that if during the 30-day period that if any part of the debt is disputed, the debt collector must mail verification of the debt to the consumer. See 15 USC § 1692g;

 

. If the consumer then notifies the debt collector in writing within 30 days that the debt, , is disputed, or requests the name and address of the original creditor, the debt collector must cease collection of the debt until the information is provided to the consumer. See 15 USC § 1692g (b).

 

If a debt collector fails to comply with any of its provisions, the FDCPA provides that a debtor may recover actual damages sustained due to noncompliance, additional damages up to $1, 000, and the costs of the action, as well as reasonable attorney's fees. See 15 USC § 1692k.

 

 

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Customer: replied 1 year ago.

Actually, the summons does not require me to appear in court just yet. Instead the court is asking me for a written response, due at the end of this week, affirming or denying the charges filed in the complaint. In my attempt to respond to this I'm trying to develop a strategy and understand how to actually/physically format my response letter.


 


In regards XXXXX XXXXX comments, I've done a lot of reading about these issues and some of the feedback mentioned that the "validation" proof you spoke of requires a written promissory note and/or signed contract between myself and the original creditor (Citibank). The credit agency suing me did provide a copy of a "statement" reflecting my account number, name, and balance, but did not show proof that I made the purchases or that I had even actually consented to the card in the first place. It merely show that there was a card in my name with a balance in 2010 at the time the debt was sold by Citibank to the first of three credit agencies. Is it not the case that the plaintiff needs to provide an actual promissory note or signed contract between myself and the original creditor (Citibank) or will the generic account balance with my name on it suffice as evidence to establish "standing." I'm not contesting their legal status to collect, or their purchasing of the debt, rather their ability to prove that I originated the contract and that the amount sold accurately reflects purchases made by me. Seeing as how the amount in question exceeds the balance extended to me, and the lack of actual written proof of my consent and purchases, It seemed I might be able to contest their "standing."


 


More to your point about focusing on the FDCPA as opposed to the plaintiffs standing, in my opinion they have met all of the requirements to prevent a breach of the FDCPA except possibly the fist one you mentioned (See 15 USC 1692). Based on the same points I just reiterated above, the amount Citibank says I owe exceeds the original credit limit by $700 and the amount the plaintiff is suing for is almost double the original credit limit.


 


Can you please speak more specifically to the criteria the plaintif must provide in their validation to provide standing, and also whether the inflated amount being sought by the plaintiff could be a violation of the FDCPA. Thanks for your time and attention to the matter, I appreciate the feedback and help very much!

Customer: replied 1 year ago.
Relist: Incomplete answer.I'm looking for more specific information regarding the criteria necessary for a plaintiff to establish standing to justify their suit.
Customer: replied 1 year ago.
Relist: Incomplete answer.
Expert:  Jack R. replied 1 year ago.

I did respond to this earlier somehow the answer did not get posted.

 

As I stated standing is probably not going to be a viable issue. "Legal status to collect is standing." Collection agencies don't take these cases unless they have authorization. Look at the complaint/summons to determine who is the party suing you., If it is Citicorp then they have standing by virtue of the business relationship they have with you... e.g. your use of the credit card. . If it is the collection company then you can ask to see if a valid assignment exists.

 

Citicorp is allowed to add charges for collection which is likely why the cost is inflated. This is permissible and for the most part standard practice.

 

What you should be doing is trying to negotiate settlement. You could probably reduce the amount owed in half if you negotiate with the collection company.

 

iI your response you can indicate as a defense "lack of Standing"; you don't have to prove it at this time. You can also state violation of the FDCPA as a defense as well. You should include "failure to state a cause of action " (because no contract was included). The answer to a complaint does not need to have extensive detail, just enough to indicate what your defenses are.

 

If you found this answer useful please ACCEPT my answer; press the appropriate quality of service button of 3 or greater. This is needed so I can get credit for my answer. If you have follow up questions please ask.

 

This communication does not establish an attorney-client relationship.Information provided here is not legal advice. Rather it is simply general information.

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