• Report: #192224

Complaint Review: Asset Acceptance

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  • Submitted: Thu, May 18, 2006
  • Updated: Mon, August 07, 2006

  • Reported By:Keller Texas
Asset Acceptance
PO Box 2036 Warren, Michigan U.S.A.

Asset Acceptance ripoff Received Law suit meant for another person owing money to Bally Total Fitness - What can we do to stop case #? Warren Michigan

*Consumer Comment: Might Be the one in question

*Consumer Comment: Might Be the one in question

*Consumer Comment: Might Be the one in question

*Consumer Comment: Might Be the one in question

*Consumer Suggestion: If they do not respond, you can file a Motion to Dismiss

*Consumer Suggestion: Always go to every court date or Asset will ask for and get a Default Judgement.

*Consumer Suggestion: Larry...You have no idea what you're talking about!

*Consumer Suggestion: You need an attorney right now!

*Author of original report: Wow..motion for discovery - How do I do that?

*Consumer Suggestion: Alex.....this gives you a right to your own lawsuit.!

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I received a summons to court for a debt to Bally Total Fitness for someone with a similar name to mine. We explained to the person serving the papers that I am not the person should have received this and that there has been a mistake, but took the papers and immediately called the Asset Acceptance lawyer sending the law suit to inform of the mixup. I thought this was an honest mistake and could quickly resolve, but I was wrong.

Once we received the summons, I immediately responded in writing to the Court saying that I am not who Asset Acceptance seeks. Turns out that even after speaking and sending letters to Asset acceptance and informing them of wrong person, they are still waiting to set a court date to sue me for a debt that does not belong to me (clean Credit reports - no Identity theft). I have also contacted a lawyer and he is ready in case they do give me court date. I DO NOT want to pay lots of money to a lawyer to defend me on something that DOES NOT even involve me. What can I do?

Thank you for posting the many Rip off reports about Asset Acceptance's shady practices. What else can I do with the FTC.gov or other to force Asset Acceptance to drop this case and quit using my home address before they send a court date hearing?

Alex
Keller, Texas
U.S.A.

This report was posted on Ripoff Report on 05/18/2006 06:36 PM and is a permanent record located here: http://www.ripoffreport.com/r/Asset-Acceptance/Warren-Michigan-48090-2039/Asset-Acceptance-ripoff-Received-Law-suit-meant-for-another-person-owing-money-to-Bally-To-192224. The posting time indicated is Arizona local time. Arizona does not observe daylight savings so the post time may be Mountain or Pacific depending on the time of year.

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#1 Consumer Comment

Might Be the one in question

AUTHOR: Alex - (U.S.A.)

I have been searching the web on advice on what to do for my lawsuit filed against myself by Asset Acceptance and stumbled upon this thread going. Reading over the above statements, I think I am the individual that was supposed to be served. If you need any help with you mix-up please contact me and if anyone has any suggestions on what to do about my case please also contact me ar leave contact information here.
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#2 Consumer Comment

Might Be the one in question

AUTHOR: Alex - (U.S.A.)

I have been searching the web on advice on what to do for my lawsuit filed against myself by Asset Acceptance and stumbled upon this thread going. Reading over the above statements, I think I am the individual that was supposed to be served. If you need any help with you mix-up please contact me and if anyone has any suggestions on what to do about my case please also contact me ar leave contact information here.
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#3 Consumer Comment

Might Be the one in question

AUTHOR: Alex - (U.S.A.)

I have been searching the web on advice on what to do for my lawsuit filed against myself by Asset Acceptance and stumbled upon this thread going. Reading over the above statements, I think I am the individual that was supposed to be served. If you need any help with you mix-up please contact me and if anyone has any suggestions on what to do about my case please also contact me ar leave contact information here.
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#4 Consumer Comment

Might Be the one in question

AUTHOR: Alex - (U.S.A.)

I have been searching the web on advice on what to do for my lawsuit filed against myself by Asset Acceptance and stumbled upon this thread going. Reading over the above statements, I think I am the individual that was supposed to be served. If you need any help with you mix-up please contact me and if anyone has any suggestions on what to do about my case please also contact me ar leave contact information here.
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#5 Consumer Suggestion

If they do not respond, you can file a Motion to Dismiss

AUTHOR: Tom - (U.S.A.)

Generally you should not file a "Motion to compel Discovery" unless you really have to.

First write them a letter requesting a full and complete explanation of their claim including all details and supporting documentation.

If they do not respond, you can file a Motion to Dismiss. Give the reason: Plaintiff refuses to explain their claim or to provide any proof or documentation.Also include any other reasons you can think of why the case should be dismissed.

A plaintiff's pleadings have to meet certain minimum standards. If they respond in a way that you feel is evasive, vague, unclear,ambiguous or insufficient in any substantial way, you can make a motion to strike individual or even all of the plaintiff's pleadings. A stricken pleading no longer exists.If any critical pleadings are stricken the case is no longer any good and you can "Motion to Dismiss".

Don't be intimidated by the idea of filing a motion. A Motion is a formal request for the court to do something. You just use a standard sheet of paper. At the top put the title like "Motion to Dismiss" then below identify the plaintiff,the Defendant, the court and the case number.Below that,give the reasons for your request.After your reasons you say, Therefore I request that this case be dismissed or whatever your request is.Then you go to the courthouse and give a copy to the desk clerk.The clerk should time stamp and certify your paper and give you a time stamped and certified copy.You should then send a copy to the plaintiff's lawyers by certified mail.

Papers filed with the court are generally referred to as pleadings.

Once the plaintiff's lawyers receive your motion or other request they should send you a response.

To respond to a "Motion to Quash Service" they should either acknowledge their error and request a dismissal or they would need to provide proof that you are the right person.The judge would then have to rule on the motion.

To respond to your motion to dismiss they could either agree to dismiss or they would have to address all of the reasons that you had given in your motion.

For any motion you make the plaintiff can agree or disagree. If they disagree, the judge will have to hold a hearing so that you can explain why he should grant your request and so that the plaintiff can explain to the judge why he should deny your request. The judge will make a ruling and either grant your motion or deny it.

You need think of this like a chess game.Always think as many moves ahead as possible. Be ready to respond to anything they do.

Make them jump through as many hoops as you can. Use the process to make sure you are treated fairly and that you get your full due process.

Don't be afraid to make as many motions or requests as you feel you need to to get justice.Make the system work for you.The plaintiff's lawyers want you to think that they have all the power and that you have to do whatever they say. But the truth is that if you know your rights and the law, you are in the power position. he plaintiff's lawyers have no right to try to intimidate, bully or coerce you. Stand up to them and make them treat you fairly and with respect. Let them know that they don't scare you and they won't be pushing you around.

The plaintiff bears the burden of proof, you need to make them prove everything.

Of course you should never abuse the process just to try to wear down your opponent. I'm sure that they would never try to use any dirty tricks on you.

If the plaintiff has brought suit when they knew or should have known that they didn't have a valid legal claim, you could file a countersuit for malicious prosecution. You could let them know that you consider this to be malicious prosecution and that you are prepared to countersue if they do not drop this lawsuit.

Stop by the law library at the courthouse and review the relevant laws, rules and procedures. Also use the law dictionary to be sure that you understand all of the legal words.

Good luck. But don't count on luck. Count on good strategy, solid tactics and the courage to meet them head on without backing down.

They have attacked you,now it's time to counter attack.Do what you have to, within the law,to stop them.

This is not an attempt to give legal advice to anyone, for any purpose or for any specific matter. I am not a lawyer. If you feel that you need legal advice you should consult a lawyer licensed to do business in your state and who specializes in your type of case.
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#6 Consumer Suggestion

Always go to every court date or Asset will ask for and get a Default Judgement.

AUTHOR: Tom - (U.S.A.)

If you have received a summons that means that you have a court date. Always go to every court date or Asset will ask for and get a "Default Judgement".

You could file a "Motion to Quash Service".Give the reason:This was served to the wrong person.I am not the person identified in the summons.

On your first day in court the court should rule on your motion.If they grant your motion it will be like you were never served.If they deny your motion,state that you deny their claim and ask for a continuance saying that you want to seek legal advice.This will give you time to make your next move.If your motion is granted, they could refile if they still think you are the right person.

Be sure, in any contact with the court, Asset Acceptance or their lawyers, that they know that you are denying their claim and that you intend to defend yourself.Say it every time you talk to them and include it in anything you write.

Next you should immediately file a "Motion to Dismiss" and list any of the following reasons that apply:

1) I hereby disclaim any interest in this matter.
2)I have never had any type of account,agreement or relationship with Asset Acceptance.
3)I deny owing any money or anything else to Asset Acceptance.
4)The plaintiff has never sent a proper, formal final demand letter.
5)The plaintiff has never sent presented a "Bill of Complaint.
6)The plaintiff has not stated a cause of action.
7)The plaintiff has not stated a claim on which relief can be granted.
8)The plaintiff has failed to show reasonable cause to bring action.
9)The plaintiff has failed to produce a copy of a contract or other written agreement.
10)The plaintiff has failed to assign specific breaches for which the action is brought.

Papers that you file with the court are called pleadings.Always file pleadings as far ahead of the court date as possible and send a copy to opposing counsel by certified mail.

On your second court date the court should rule on your "Motion to Dismiss".If they deny your motion,request a "Bill of Particulars" also referred to as a "Motion for a More Definite Statement".

Once Asset realizes that your not intimidated by them they will usually give up.They will either request a dismissal or a "Nonsuit".

If they do not send a "Bill of Particulars" or somthing to indicate that they quit by the date that the court has given them to do so,immediately file a motion to dismiss.Give the reason: plaintiff has failed to produce a "Bill of Particulars" as ordered by the court.

If they file what you feel is an insuffient "Bill of Particulars".You could file a "Motion to Strike".Give the reasons:
1)All of the plaintiff's pleadings, in their totality, are insufficient to inform the defendant of exactly what their cause of action is.
2)All of the plaintiff's pleadings fail to present a cause of action,a complaint or a claim for which relief can be granted.
3)The plaintiff's pleadings are vague,unclear and unintelligible.
4)I deny owing any money or anything else to Asset Acceptance.
Therefore I request that all of the plaintiff's pleadings be stricken and that this case be dismissed with prejudice.

"With prejudice" means that they cannot refile this case ever again.

This is not intended to give legal advice to any person or for any purpose whatsoever.It is presented "As Is".It is not intended to address any specific matter.Any appearance to the contrary is strictly unintentional.If you feel that you need legal advice you should hire an attorney licensed to do business in your state and who specializes in your specific type of case.It is always important to know the law in your state and apply it to your specific case.

Remember,you have rights but those rights don't just magically happen. You have to know them and demand them.

Good luck to anyone being unjustly accused and prosecuted.
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#7 Consumer Suggestion

Larry...You have no idea what you're talking about!

AUTHOR: Steve - (U.S.A.)

Larry,

I have been fighting of debt collectors, debt buyers, and debt collector/attorneys for more than 4 years now.

I have gotten every lawsuit dismissed before trial. I have no judgements against me and have not paid out 1 dime to anyone. Therefore, i believe my advice is sound.

FYI..In TX..ther is NO wage garnishment for civil judgements. Only taxes and child support.

Asset Acceptance MUST PROVE the case against you in court. They MUST provide whatever document created the debt, and be able to show an account history. Every health club has a contract, and they always photocopy a picture ID for insurance purposes.

Any paralegal can prepare and file the motion of discovery for you.

Get copies of all three credit reports and bank statements, utility statements and/or letters from landlords, employers, etc..as to your residences, etc.. get them notarized.

This will back up your case of mistaken identity. AND in court you provide your drivers license and SS card to the judge that seals the deal.

Now when it gets dismissed, you get a lawyer and countersue for frivolous lawsuit. You WILL get paid.

Good luck!
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#8 Consumer Suggestion

You need an attorney right now!

AUTHOR: Larry - (U.S.A.)

Alex,

I was formerly licensed as a process server in Arizona. I have also represented myself in numerous lawsuits in every level of court in that state. Based on my experience, I would disagree with nearly every piece of advice that Steve has offered you above.

The lawsuit served on you is not frivolous. It is a genuine legal matter but served on the wrong party.

So why is no one listening to you when you tell them that you are not the person being sued? The judge is not going to dismiss the case because that is a question of fact for the trial court to hear. You are seeking a judgment on an issue that the other party disputes without going to trial. They have the right to present their evidence just as you have a right to present yours. Unless you can persuade Bally's attorney to dismiss the lawsuit, plan on going to trial.

The attorney representing Bally's doesn't really care whether you are the right party. He bills his client by the hour. Besides, he is using information provided by some dimwit clerk who picked you out of the phone book.

You really ought to hire a lawyer to represent you. If you defend yourself and lose to Bally's experienced trial attorney you will be stuck with a judgment, court costs, Bally's attorney fees, and a long-term prominent stain on your credit. Hiring an attorney is not a guarantee of success but it does level the playing field. In most states if the lawsuit arises from a contract the winning party is entitled to recover his legal fees from the loser. Even though you never had a contract with Bally's, this suit arises from their claim of a breach of contract and you should be able to recover all your costs from them.

I am not familiar with Texas rules of civil procedure but would be surprised to find that they have a pre-trial hearing. Unless one party or the other has requested oral arguments on a pre-trial motion the first time you appear before the judge will be at trial.
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#9 Author of original report

Wow..motion for discovery - How do I do that?

AUTHOR: Alex - (U.S.A.)

Steve,
Thank you for your quick reply! Luckily, I have done most of what you suggested. Have a question:

How do I file a motion for discovery to see exactly what evidence they have that leads them to believe this is meant for me? Can I do this on my own without paying a lawyer?

To answer your questions:
No the summons does NOT actually have my name.. its similar spelling with even a different initial. I have not given Asset Acceptance nor the Court personal information like SSN, DOB etc. Just my name showing that I'm not the person they are seeking.

The summons was served in person with a real Case/Cause #. (Looking back, we should have rejected the summons from the server, but thought I needed to simply call the lawyer shown and inform of the mistake and be finished... I was wrong.)

I replied exactly the way you said to the Court: very short and concise saying I am NOT the person Bally total fitness / Asset acceptance is seeking. The name, SSNs, DOB, etc. on the summons do not even match mine.

THANK YOU for explaining that the first appearance is just a pre-trial hearing. If this happens, then I will present my side on the mistaken identity.

ANY more feedback and experience on how to end this would be greatly appreciated. I am not leaning toward sueing them back (due to costs) for frivolously suing me unless it makes sense.
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#10 Consumer Suggestion

Alex.....this gives you a right to your own lawsuit.!

AUTHOR: Steve - (U.S.A.)

Alex,

This is called frivolous lawsuit.

However, You have to be real specific and short in your reply, otherwise they get confused.

Does the summons actually have YOUR name, or a name close to yours? Did you give asset aceptance any personal information like SSN, DOB etc when disputing this? If not, DON"T!

Did you say you recieved the summons in the mail? If so, you should have never responded to it. Summons need to be served in person. This was an illegal service, even in TX! If it wasn't served, it may not even be a real lawsuit!

Write ANOTHER letter to the court, and CC it to Asset Acceptance. Be short, and direct. Specify that you NEVER had a contract with Bally. Specify that this is a case of mistaken identity.

Send. this letter by certified mail, return reciept requested. Put the certified# on the letter itself and keep a copy for your records.

You really do not need to pay a lawyer on this. The first appearance is just a pre-trial hearing. You can present your side then on the mistaken identity.

While you are waiting you can file a motion for discovery, to see exactly what evidence they have on you.
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