CREDITWRENCH
Creditwrench teaches the secrets of the debt collection industry and how to defeat their abusive practices without lawyers. We know how to win!
Wednesday, July 30, 2008
Amex wants to sue me.
Amex GC Services
Question:

One of my Amex accounts was recently (7-28-08) turned over to GC Services. I had been trying to work this out with Amex, but it was not resolved in time, and sent to collections. I received a message to call them (GC) back. I did right away. After the gentleman found my account info he told my I was being sued for the amount due $22,000.00+. and I needed to come up with the money. He will call me back on Wen. the 30th for payment info.

My question is how do I reply? I don't have the money, and I did ask him if they would work with pay off arrangements, and he said they would not, and that I should barrow or ask friends or family for money. Can I ask for written proof? can they attach leins to my assets? This is very stessfull and do want to take care of the debt. What about debt relife/help companies?
Thanks you, David

Answer:

You want real debt relief? What do you think a debt relief company might be able to do for you? I don't know what you think a so called debt relief company might be able to do for you.

There are only two ways to get debt relief that I know of and you already said you can't pay the debt so that way is apparently out of the question.

The only other kind of debt relief I know anything about is where you learn how to make them forget about collecting anything and agree to it in a written contract, take it off your credit reports, pay you for your costs of getting the debt relief and your damages on top of that.
Now that is real debt relief as far as I am concerned.

I'm reasonably comfortable with the thought that such strong talk may raise eyebrows and cause great skepticism but let me refer to the words of an attorney at Nitzen & Associates of Michigan. Nitzen & Associates are debt collection attorneys. It is their job to collect debts by filing lawsuits on people who don't pay their debts. If that kind of attorneys write words like the following then what I am saying must be true.

Nitzen & Associates said:

Attorneys for Debt Buyers beware...they are on to us!

I love defending people against debt buyers because the Plaintiffs case is as strong as a house of cards in a hurricane. Debt buyers buy judgments, credit card charge offs and other sordid garbage debt for pennies on the dollar. Hell, there are even debt buyers that buy debt that has already been through a collection agency or two. Usually, when a debt buyer purchases his paper, he gets little more than the judgments or a spreadsheet showing the balances due. What does this mean for the consumer that is sued? Everything. The debtor buyer has no proof that the consumer owes anything other than some shmoe's word for it that the debt was owed in the first instance. Recently, someone got wise to the idea that an attorney who sues on this crap and does not have the goods to show that the debt is actually owed, may be violating the Fair Debt Collection Practices Act. I can't wait to share this case with you.

In Isom v Javitch Block and Rathbone ("Javitch"), the defendant is a law firm that had sued Ms. Isom in state court for a debt that was purchased by some company called Direct Merchants. Javitch attached an affidavit to its complaint that had been prepared by Direct Merchants. When Ms. Isom demanded discovery in the state court case, Javitch simply dismissed the case. Why? Because it did not have any proof to show that its client was entitled to any money from Ms. Isom. Now, its Ms. Isom's turn.

She sued Javitch in federal court and asked for class action status. She alleged that because Javitch had sued her without having any documentation to show that she owed the debt that Javitch had violated the Fair Debt Collection Practices Act. Ms. Isom alleged in her complaint that Javitch attached a false affidavit signed by Direct Merchants that said that Direct Merchants had personal knowledge of the balance due by Ms. Isom. The court held that because Ms. Isom alleged fraud her complaint against Javitch, that she has enough of a case to go to trial. The court denied Javitch's Motion to Dismiss Ms. Isom's claim.

In analyzing Ms. Isom's case, the court noted two lines of cases that dealt with the issue of whether a debt collector violates the FDCPA by suing a debtor without having substantial supporting documentation for its case. In Delawder v Platinum Financial, the U.S. District Court denied the Defendant's Motion to Dismiss. In Delawder, the Plaintiff alleged that the debt collector had committed fraud because the affidavit in support of its case misrepresented the amount of the debt or the debt collector's legal claim upon the debt.

The second line of cases involved Harvey v Great Seneca Financial in which the Plaintiff alleged that the filing of a suit to collect a consumer debt without the means of proving that debt was a violation of the FDCPA. The court in Harvey dismissed the action stating that Plaintiffs do not need to prove their cases at the time that the lawsuit is filed. However, in Harvey, the Plaintiff did not allege that the affidavit attached was false.

In Ms. Isom's case, she alleged that the affidavit that was attached to the complaint against her in state court was false. She alleged that there was no way that the Plaintiff had "personal knowledge" of her debt to the original creditor. The court found that Ms. Isom's case should proceed to trial on the issue of whether the Defendant's affidavit was false and if so, whether it violated sections 1692e and 1692f of the FDCPA; the Act's prohibitions against false or misleading representations and against unfair collection practices, respectively.

Javitch pled to the court that it should not be held responsible for an affidavit that its client had signed in support of the complaint. Judge Barrett would have no part of that argument. Javitch's attempt to side step the FDCPA bullet was foiled when Judge Barrett correctly pointed out that it was Javitch that signed the complaint and attached the affidavit in support of its complaint. Javitch, as a third party collector, has to take responsibility for its own actions.

ATTORNEYS FOR DEBT BUYERS BEWARE. Remember that you are responsible to verify that the debt and every part of the debt that you are collecting is legitimate. The days of suing debtors without having proper documentation and hoping for a default judgment is like playing Russian Roulette. You are bound to piss off some debtor who reads my blog and knows his rights. Now, you have to doubly (if there is such a word), that the affidavit that you are attaching to your complaint is accurate. The FDCPA makes you a guarantor of sorts that the affidavit is bona fide.

I have two students in federal court with exactly identical cases as the ones mentioned above and both will win easily. So how did I find out about this case? I have several of what are known as RSS feeds on my message board at http://consumers.creditwrench.com and they bring constant updates to the board from various blogs written by attorneys.
The RSS feeds automatically update every 12 hours bringing in any new information written by attorneys who write such things. Those feeds keep my readers up to date and finding information they need to win their cases against debt collectors.

That should prove beyond any shadow of a doubt that when I say something like I did I'm not just blowing smoke. People are doing exactly what I'm telling you that you can do all the time now. And most of them are learning how to do it without lawyers.

Now that is what I call debt relief. What do you call debt relief?

Bill Bauer
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