CACV Of Colorado, P. Scott Lowery trying to rip me off, they bought a written off loan from MBNA and have been trying to collect for 5+ years, and they are now sueing us for more than 5999.00 that we dont owe. Denver Colorado

My wife was served today with papers for a debt of $3193 in York County SC. This a debt that CACV bough from MNBA and the origional debt was $1878. The debt was last active in 2003/4 and our SOL is 3 years in SC.

Ok so the arbitration that we never heard about until today was held in 01/21/2007. Of course she was not informed of that hearing. We had 3 months to respond which is of course passed. The court notice was filed on March 03 2008 and that is passed 3 months, we were given 30 days to respond to that. It seems that all these dates are passed and with no notice to us. Given that the SOL is passed what can they do and what can/do we do to fight it. Do we need to go to court. There is no hearing or date set and it looks like this is an intention notice to file suit to get the arbitration awarded.

It states that we have 30 days from service of the notice to seek relief of the arbitration award and they are seeking a hearing regarding enrolling the arbitration award as a Judgement in SC.

Ok, what you said makes a lot of sense. Thanks so much.

I've been doing all the researching myself. I have decided to use my husband's attorney for the actual courtdate, if it doesn't get dismissed. I'm not too good under pressure.

At that time I will hand over all my info to him and let him do the talking. At $250/hr I'm trying to only use him for 2 hrs. An hour prep and an hour for court.

generally, a breach or default, starts when you miss the first 30 days payment, and that start to add in late fees and up your interst rates.

Credit card companies, can hold onto a credit account upto 180 days, then they charge them off, and sell to bottomfedders.

anytime the credit card company adds those extra fees to your balance, your account is in breach.

miss one month payment and it cause all those crazy fees to be added on, you are in default.

during that 180 day befor it was chargd off and sold. If you didn't make a payment during that time, the first 30 date payment you missed starts the clock

Thanks J for the info. The other problem I'm having is establishing when I breached the contract. I've heard various things.

According to the customer agreement, it would be the first time I was late in making a payment. My husband's attorney agrees with that.

My sister is an attorney in NY and she says that they would have sent a letter stating that I was in default or breached the contract. She also says that's probably what they're going on. I don't remember receiving such a letter, but it was over 5 years ago.

The attorney that is suing me is going with the date the account was closed by the creditor. I'm thinking I would have had to default before the account was closed. I do recall at the mediation that the attorney said that my last payment was that date, which is wrong, it's the date the account was closed.

The only proof I havs so far is my credit report, but all three credit bureaus say something different.

Check with the Bar Assoc. to fine out if an attorney NOT license in Florida, can do legal action in Florida.

In Florida, It is well settled in that jurisdiction and elsewhere, that a cause of action for a breach of contract accrues and, therefore, the statute of limitaion begains to run at the time of breach.

A.F.Pylant, inc, v. escambia treating co. 276 F2d 924 (Fla CAS 1960).

State Farm Mutual Auto Ins Co., V Lee 678 So2nd 818(Fla 1996)

An action on a contract Not Founded on a written obligation and must be commenced within fours years after accrual.
Venditti-Siravo, inc V. City of Holloywood, Fla 418 So2d 1241 (Fla. $th DCA 1982)

Flowler V. Towse, 900 F. Supp 454 (S.D. Fla 1995)

Fla statute 95.11 covers Statute of limitations.

Most attorney will try to file credit cards as written contracts, because of the longer SOl.

A credit card is always an open account. This is established under the truth-in-lending Act
Its up to you to make the court see it a such.

Title 15>chapter41>subchapter I> part 1602

good luck

I know this is probably too late but I thought it would be helpful for people searching for info on this subject, as I was.

I'm also being sued by an Attorney/Creditor (for Capital One). I find it strange that Capital One never sold this debt. My credit report says they still own it. This debt is going on 6 years. The interest collected is more than what I originally owed.

I was served and attended the pretrial mediation. It was a cattle-call for creditors. The lawyer that had my case also had 16 others. I was the only one who denied any claim. Everyone else either got a judgement or had to work our a ridculous payment plan.

During the mediation I continued my defense in that the debt was not mine. With no agreement made we set a court date.

Now I'm in the process of researching anything on SoL cases. I've also sent a letter for discovery to the attorney suing me. When I get all the info back from them, I plan to file for a motion to dismiss based on SoL. I just need to find out when the SoL starts running. The date the Attorney has is 10 months later than mine, which will be the difference between winning my case or having to file for bankruptcy.

Jennifer,

Arbitration issues are not my specialty, however, I will share what I have learned about them.

Generally a "binding arbitration" claim only applies when dealing with the original creditor, or a collector working for the original creditor.

Arbitration usually only is used when the debt is disputed, and is used to settle the dispute rather than going to court. It is required as a sole option for settling disputes regarding your account.

However, CACV is NOT a creditor, and they are most likely not directly representing the original creditor, so I would assume their claim to rights of arbitration is invalid.

CACV is primarily an agency who purchases JUNK DEBT and represents JUNK DEBT BUYERS.

If CACV has it, the original creditor is most likely out of the picture.

The best defense here is to ignore them completely until they actually file a lawsuit on you. Then you use a defense that they do not have the right to sue. They will have to prove that they own the debt and they have the right to sue you for it. They will have to provide a copy of the purchase contract as well as proof of payment including how much they paid for it.

Even if the court determines they have the right to sue, they can only sue for what they actually lost, which is most likely 1-2 cents on the dollar of the original debt, plus costs.

Steve,
I received an arbitration claim from CACH, I don't know if thats the same as being sued. I have to respond within 30 days. Can I use the same letter you recommended to Mark and Melissa in my response to the NAF?

Thank You Very Much

The first thing you want to do is respond in writing to the lawsuit by certified mail, return reciept requested. Put the certified# on the letter itself and keep a copy for your records. This is VERY important, do not skip this step!

Send this letter to both the court and the lawyer for the plaintiff.

In this letter clearly deny the claim, and be sure to clearly reference the case# and the court, and sign and date the letter. Specify that you have never entered into a business relationship with CACV, therefore the lawsuit is frivolous and should be dismissed.

Also in this letter demand discovery on the case which should inlude whatever you allegedly signed to create the debt as well as a full account history and itemization of charges.

Also demand proof that they are licensed to collect in your state and that they actually own said debt. Demand to see the actual proof of payment and AMOUNT PAID. This is very important.

In most states you can only sue for what you actually lost. In this case they have lost nothing, as they are not creditors, they do not extend credit, and you never did business with them. The maximum that can be sued for is the amount they actually paid for the "debt", if that.

Also demand an accounting of "chain of title" on the alleged debt. You can take this back as far as the original creditor if you like. It is your right.

Finally, never admit to ANY debt and never reference your account with the original creditor as this could be an admission of owing the money. The original creditor is out of the picture as they charged off, sold, and took the tax deduction for the loss. That debt ceased being a debt at this time. It is now an investment.

They are using the courts to guarantee return on investment! Make sure the court understands this. The example I always use is your stock broker sells you a stock, and the stock crashes and you lose all of your money. Do you sue the stockbroker, or do you accept the fact you made a bad investment?

Steve,
I need your help. We were served last week by CACV. What would your suggestion be if they included a copy of a statement from the original creditor and the an affidavit of sale from MBNA to CACV. We want to fight this lawsuit because we refuse to pay a debt buyer that bought this account for pennies on the dollar.

Mark,

Don't run out and hire a lawyer just yet. I have done this many times and got it dismissed. You do want to respond right away, and an all in one response is great. Here's what you need to do.

All correspondence should be in writing only, and by certified mail, return reciept requested. Put the certified# on the letter itself, and keep a copy for your records. This proceedure is very important as they usually claim they never got a response.

In the response, DO NOT aknowledge the debt! This will kill you in court! These are junk debt buyers and they MUST prove you owe THEM the money. Your response should be in business letter format with the CASE# and COURT clearly specified, and be sure to date it and sign it.

Respond something like this:

"This is the response to your lawsuit filing as required by law, within 45 days from date recieved.

I hereby deny all responsibility as I have never heard of CACV or P. Scott Lowry, and I have never entered into any agreement with them. I am not aware of any delinquent debt in the amount of [actual amt] to anyone.

I was never notified of such debt prior to the lawsuit filing, therfore I feel the lawsuit is frivolous and should be dismissed.

In addition, at this time I request discovery on this case which should include any contracts I allegedly signed to create indebtedness to CACV and a full account history and itemization of said charges".
>>>>>>>>>>>>>>>>>>>>>>

This usually works when sent by the means above to the court, the plaintiff and attorney for the plaintiff. They usually dismiss before trial.

I would hold off on hiring an attorney until you see they will not dismiss as you will not harm your case up to that point. Your attorney can always file an extension request if needed.

I have beaten 3 lawsuits just like this. DO NOT mention anything about ANY debt, as the entire burden of proof is on THEM. Make it as hard as you can on them, as this is all a lawyer does.

The other strategy if this first step does not get it dismissed, is to challenge everyone in the entire chain of title on the debt. Everyone that owned it back to the original creditor will have to prove they legally owned it.

You also have a right to know HOW MUCH they paid for it, and see the proof they actually bought it. They never want to disclose the penny or less on the dollar they pay for these debts. They are not entitled to return on investment, only actual losses, and since they are INVESTORS, not creditors, they have LOST nothing! I love using this one!

Good luck!

Mark,

I'm in total agreement with Heather.

You should have sent a letter disputing the debt immediately, but better late than never. Phone conversations are great for fishing for information and trying to motivate some particular action on their part, but you must notify the collector in writing to preserve your legal rights.

At this point, it sounds like your back is against the wall. You need an attorney to make sense of it all before its too late. There are many resources available that you might use if you had more time. But there are so many variables, the terms of the contract, federal law and state laws for all of the states involved - where you signed the contract, where the company is incorporated, where the collector does business. You need someone quickly who knows the ropes and can apply their experience to your particular situation.

The other thing you need to start working on is getting your records together. You say that MBNA has "written off" the debt. If that is literally true, and IRS code says they must cancel any UNSECURED debt after 36 months of inactivity, they should have sent you a tax form 1099c. You should have a copy of that, the original contract, any written correspondence with MBNA or the collector, and a copy of your last statement or copies of your payment checks, money order receipts, or whatever.

Mark:

Don't worry about getting a copy of your dispute letter over to the courthouse right now.

Your attorney will file a general denial for you and may/may not decide to include a copy of your dispute letter with the denial.

Just worry about sending the letter to the debt collector and finding an attorney, post haste!

Good luck!

Heather thank you for your input. I intend to do just as you said and quickly because we only have 45 days from yesterday(10-3-06)
thank you very much.

Should I also send a copy of this said letter to the court as well?

Mark,

You are being sued on a debt that "appears" to still be within the statute of limitations (assuming the debt occured in Wisconsin and you haven't moved from the state - Wisconsin has a 6 year SOL on everything but promissory notes).

THIS NEEDS TO BE HANDLED IMMEDIATELY.

First step, mail a letter to the collection attorney (and CACV) telling them that you dispute the validity of the debt that they are collecting...send it certified mail, return receipt and keep copies of everything. This will buy you some time to find an attorney while they are trying to come up with proof of the debt.

Then, call and meet with consumer attorneys in your area (that can be found on the National Association of Consumer Advocates internet site) and HIRE ONE!

You need to respond to the complaint in a timely manner or else you will most likely find yourself on the losing end of a default judgement which could haunt your credit for decades. An attorney will help you answer the complaint and come up with a list of affirmative defenses as to why you should not have to pay this debt.

Go get 'em and don't let them get a default!