Bill, not his real name, is filing bankruptcy with me in October. (He needs a couple more months to finish everything to get his bankruptcy approved.)
In the meantime, he received a warrant in debt. Midland Credit Management, a big debt buyer, was suing him on a old Chase card. He didn’t want to get a judgment and a garnishment while we were waiting for the right time to file the bankruptcy.
Bill knew, from my warrant in debt website, that he had to go to court on his return date, and tell the judge he wanted a trial. He had an easy basis for saying he wanted a trial. ”I never heard of Midland Credit Management. I don’t know who they are or what this is about.”
He asked for a bill of particulars, and Midland’s lawyer asked for grounds of defense.
When Midland submitted their bill of particulars, they wrote they had bought the debt from Chase, and Bill owed Chase $4822.
For Bill’s grounds of defense, he wrote to the court and Midland’s lawyer that there were no documents showing that Midland really bought the debt from Chase; and that Midland had no evidence of how much he owed Chase–they would need a witness from Chase to prove that.
Bill was nervous on his warrant in debt trial date, but it was easy. When they called his name, the lawyer for Midland said, “Your Honor, this is our first dismissal of the day.” The Judge then turned to Bill and scolded him slightly to be financially responsible. Then he said, you won today, you are free to go.
Bill handled this on his own, but I had given him some tips. One thing I said, if this is still America, you’ll win. Nice to know this still is America.
Under Virginia law, Midland would be able to bring the same warrant in debt a second time. But they won’t be able to move fast enough to beat our October bankruptcy filing. (And they probably couldn’t prove it then, either.)
When we get to October, his bankruptcy will go fine.
PS Here’s an update on March 30, 2011. The Attorney General of Minnesota announced he is going after Midland, and their parent company, Encore. He says they used robo-signed affidavits to sue people on in Minnesota. In other words, Midland claimed they reviewed their records and had proof so-and-so owed them money–but nobody actually looked to see whether they really had that proof. This press release would be something to bring to the attention of the Judge, if you go to court and fight Midland on one of these.
{ 32 comments… read them below or add one }
Dear Mr Weeds
I wish I had picked you for my bankruptcy filling,but instead I went with Mr Thomas Murphy-a fine Southern Gentleman like yourself.Dear Sir,I very much enjoy reading your email.Besides relevant information that would help me,it is so much fun to read.I have a friend who will need your help and I will send him your way.His name is Bryan, and this is my way of saying thank you.
Respectfully yours
Pernin Luckenbach
Thanks. Tom Murphy is a fine lawyer, and I often recommend him to people when a case is something he’d do better than I would.
My wife and I also benefited from Robert Weed’s article on explaining about the warrant-in-debt process. Prior to my wife’s warrant-in-debt Return Date hearing, our paralegal, Valerie, reminded us to “just ask the judge for the trial date and bill of particulars” and “not to discuss whether the debt is owed or not”. At the Return Date hearing, the judge first asked my wife, “Do you agree that you owe this debt?” It took a few seconds but my wife remembered the message that I passed to her from Valerie, and my wife simply stated, “we request a trial and bill of particulars” without talking about the debt. That gave us time to properly file for bankruptcy.
* Mark
Midland–the people in this article–have been accused of robo-signing. That’s the same thing as in the foreclosure scandals. Having an employee claim that they have looked at the records and they know the amount of the debt–when in fact they haven’t looked at anything except where to sign their name. Here’s the article, which ran in a collection industry newsletter than I sometimes see. http://www.collectionsrecon.com/collection_news/credit-firm-accused-of-robo-signing/
That’s why, if you go to court, you have a chance of beating them.
i have personal private wid. I knew nothing about asking for this bill of particulars or proceedings.I received it on my door. I asked in the court house what i needed to do to show it is without merit.They schueled a transferred it from small claims to regular court house.It states it a trial now that i revewied it on the form.Noone told me i needed to ask for these things..So now i am confused. When i get into the hearing at reg court room.I do have the right to ask for bill of particulars ? Also. I live in Williamsburg va. I read a lot of your clients reviews. I really need to file bankrucpy due to old debt of monetly Hospital bills that are really old and dont seem to be dropping off my credit report.Can i use you even if i live in williamsburg va?Must it be in my immediate area?Thanks for your time
I can recommend Linda Coppinger, in Hampton.
2 Eaton Street
Hampton, VA
Phone:757-825-5577
Hello,
I received a Warrant In Debt in the mail from a 2nd or 3rd collection agency on a charged off Chase credit card from a little more than 3 years ago. It is my understanding that the Statute of Limitations in VA is 3 years and that in fact in October of 2010 new legislation was passed clearly defining that credit cards fall under the “open account” and 3 year SOL. I have been trying to find an attorney to help me but the two that I spoke to want to charge me $2K minimum to help. I also called the court and the Debt Collection agency hasn’t filed the warrant in court so it’s not on their docket yet and there’s no case number but the Warrant states that the court date is 9/26/2011 Do you have a reccomendation for an attorney in the Richmond area and do you know definitively if the SOL is 3 years? Should I just send a letter to the company stating that the SOL has passed in hopes that they won’t move forward with the court date? Thank you so much for your help in advance!
Emma
The law firm I’d recommend is Krumbein Consumer Legal Services. http://www.krumbeinlaw.com/. Besides your statute of limitations defense, they also probably cannot prove they actually own the debt. I do not think you should try to negotiate with them before the court date. Show up on the court date and ask for a trial. Take them by surprise. Then you can try to negotiate in the hallway afterwards, when they know you are not going to be pushed around.
Here’s an article about Midland’s activities in Kansas. http://www.collectionsrecon.com/collection_news/collection-companys-practices-under-fire/
The Maryland Court of Appeals published new court rules for debt collectors. In Maryland now, they cannot sue without some two documents. One document showing the original debt–like a credit card bill with your name on it, from the original creditor (Citi or Chase or Bank of America, for example.) Second, a statement from the original creditor that they actually transferred the account to the debt collector.
Michelle Singletary has a good article about this in today’s Washington Post. http://www.washingtonpost.com/business/maryland-makes-it-tougher-for-debt-collectors-to-sue-consumers/2011/09/15/gIQANRCMaK_story.html
In Virginia they would also have to come up with those thing–but ONLY if you show up in court on the return date and ask for a “bill or particulars.” Otherwise they can sue you and win based just on their own say-so.
If you want to fight them, the time to talk to a lawyer is when you first get court papers. If the court date is past and you lost, bankruptcy can sill help you (almost always), but nothing else much can.
Hi,
First, I want to thank you for your wonderful and informative web site. The information contained therein is invaluable and a great service to folks like me.
Here’s my situation: I had a credit card with Juniper with a credit limit of $250. Juniper was acquired by Barclays in 2004. With interest and fees the account now stands at $1507.00 and I have been sued by Barclays. At the initial hearing I requested a trial. I just received the Bill of Particulars from Barclays which included a few self-serving comments and 1 exhibit (2 pages of the 4 page last statement they claim to have sent me).
I do have a few questions I hope you can help me with:
1- They state in their Bill of Particulars that they reserve the right to amend the Bill of Particulars at any time up to the trial. Can they do this? My concern is that they purposefully did not provide full documentation or did not have it. Should I contact them and request additional documentation (proof of purchases, proof of Barclays purchasing the debt from Juniper) or should I do nothing?
2- I am confused as to the starting date of the 3 year statute of limitations in Virginia. I actually moved here from Florida in May 2010, so I’m not sure when the clock began to run and if Virginia is the state that applies.
3- 90% of the debt alleged is late fees and interest even though the account closed Juniper/Barclays years ago. Are the fees/interest charged after the account closed allowed by the court?
4- Finally, when I file my grounds for defense, should I do what “Bill” did- state that they provided no proof of the debt and no proof that they bought the debt from Juniper?
Thank you and God bless.
1-
Your grounds of defense needs to include statute of limitations. Then they need to prove the date of your last payment. In Virginia its three years on an open account–five years on a contract. Did they come up with anything that was signed by you–if not, then the three years should apply. But it sounds like they may not be able to prove a payment even in the last five years.
Do you have a recommendation for an attorney in the Chesterfield area? (specifically to dispute debt/FDCPA defense.)
Jason Krumbein. Richmond.
Hi,
I have been reading your information after my previous landlord called me stating she had a debt of warrant posted on her new tenants door for me. I no longer live in this county and haven’t for 6 months. I was reading your information on Capital one and this is who I am battling. I am young and have never checked my credit until getting this phone call. I never got the debt of warrant so I looked up the information and requested a change to my current county. Nonetheless, having never checked my credit – I didn’t check it for this very reason : I have no credit cards! My mother applied for cards in my name along with the cable and electric bill. She passed two years ago and this account has been unpaid since. She did pay on the account from OUR bank account when she was living.
I’m not sure where to go with this… or how to prove my case. I’m a full time student and barely make enough to get by even working 50 hours a week. I really can’t afford a lawyer… yet I am pretty clueless about what to do.
Please help!
Thanks!
Well you need to go to court; you need to ask for a trail, you need to file your written grounds of defense, and at the trial date you need to tell the judge why you are right and the landlord is long.
The stuff with your mom is called identity theft: most identity theft if someone in the family “borrowing” the credit of someone. You can research that on the internet and then do disputes with the credit bureaus.
Finally, you need to start getting credit. Go to bankrate.com for credit cards and look for credit cards for bad credit. Get one and start charging your gasoline and paying it in full every month so you start to develop a credit history.
My husband and I recently received a warrant in debt in VA for the amount of 15k that we owe Beneficial. We have no idea what to do except show up for court. Here are some info in regards to our situation: We signed the contract for the loan in Hickory, North Carolina. We moved backed to North Carolina from Virginia 6 months ago. Will any of this affect the court date and the venue?
I read up on some info about going to trial in VA only if you are a resident. Need more info please. We are completely nervous about this situation but understand that we owe this debt.
If you signed the contract in North Carolina and now (again) live in North Carolina, then they can only sue you in North Carolina. What address did they send it to? If they used a lawyer on the warrant-in-debt (in Virginia they don’t have to), the lawyer is a Debt Collector under the FDCPA and he in vulnerable to a $1000 sanction for suing you in the wrong county. You might want to talk to a lawyer in North Carolina, or two lawyers. One on the FDCPA violation; and one about bankruptcy. (Unless Beneficial is your only debt problem and you can pay it pretty quickly.) Judges in North Carolina are generally more favorable, and laws too, than in Virginia, on things like the FDCPA so you should really see what can be done about that.
I went to my 1st court date and I received a trial date. I don’t have the money to pay. I thought I would be able to get a bankruptcy lawyer before the grounds of defense is due, but it doesn’t look like it. What should I do? Do I still send something in? Will they start garnishing my pay?
You should send in your grounds of defence. And you need to see a bankruptcy lawyer.
Robert, this information is very useful for my purposes. Thank you for taking the time to let us know about all of the terminology. In my situation, I am dealing with this Midland Agency, who has supposedly purchased the debt from a bank in Deleware. My initial court date is coming up in 2012. I really need to get some further advice on how to handle this. They show my last payment date being in August of 2008. The papers weren’t filed until November of 2011. Statute of Limitations in the state of Virginia, as mentioned before, is 3 years from the date of the last payment, or last purchase if there was no payment. So, I guess I could use that as a defense. However, this debt was secured debt that required a security deposit that has been drawing interest this whole time. My credit limit was like $300 but they are saying I owe over $800! With this being a secured debt, what will be the best way to go about defending against this in your opinion? Do I use all of this information, plus the reports out of Minnesota and Kansas about the “robo-signing”? In my line of work, it is going to be difficult for me to go to a court date that I do not have to attend. I am trying to support a family of four on less than $25,000 per year. We are having a very hard time making it as it is.I do not need the stress this causing. Also, I have been trying for four years to get some of the stuff off of my credit report that i do not recognize. As a victim of “identity theft,” 90% of what is on the report is not mine. I have been pretty unsuccessful to this point. When I disputed this account was when the letetrs started arriving. Please give me whatever kind of advice that you can. Thank you in advance.
Thanks for your quick response. That’s the thing though, I have no idea what to put as my defense. I do owe the money, but I don’t have it to pay.
It’s a lot cheaper for you to go to court than to hire a lawyer to go or to get garnished. So you need to go. You have obviously read my post and that pretty much tells you everything I know about how your should handle yourself in court. In addition to robo-signing and who are these guys anyway, I’d also mention you had identity theft and a lot of the debts on your credit report are not yours.
In terms of your credit report, if you’ve been disputing and had no luck, its time to talk to a lawyer that does that kind of thing. I like Jason Krumbein in Richmond. http://www.krumbeinlaw.com/. Or Len Bennett in Newport News. http://www.consumerlawusa.com/.
What can I use in my grounds for defense when I signed the contract in the city where I’m being sued but lived in another county now and at the time that the contract was signed? Is that still a violation of the FDCPA for being sued in the wrong county? My car was repossessed after missing only one payment that was less than 30 days past due. Prior to that, my payment history was perfect and I had not missed a payment. I called the company prior to the due date to ask for an extension on the payment due on May 2009 so that I could use the money to have the car repaired. I was granted the extension by a Credit Acceptance Corporation customer service representative.
You need to talk to a lawyer–your chances of beating Credit Acceptance on your own are not good, but it sounds like you have a story to tell that might win if a lawyer helps you with it.
Thanks, I will call Jason Krumbien.
Have you had any dealings with Dominion Law Associates? They sent me a Warrant in Debt for a credit card account from Capital one for $1700. If i plead guilty and try to make payment arrangements will they try to garnish my paycheck just because they can? I want to fight them. My court date is next month in Va beach. If i do need a lawyer -do you recommend anyone?
You need to ASK FOR a TRIAL and then try to make payment arrangements. That way you still have a little leverage. Do not PLEAD GUILTY and ask for payment arrangements. At that point they have no reason to work with you.
Hello, my husband and I both have financial problems as a younger couple who do not make much. Should we both file chap 7 separately, or can you do it together? I have never filed but my husband did in 2005 and unfortunately is in the same position again. I believe he would have to wait until next year to file chap 7 again correct? I will probably end up filing this year if possible. Each of our debts were mostly done before we were married and are mostly credit cards and doctor bills, but some were after we married. Also, my husband has a warrant in debt that he is going to trial for. It is from Dominion Law associates and the last payment made on this Barclays/Juniper credit card was 11/2009. He received letters from several different collection agencies for this card, but then finally ended with DLA and the lawsuit. It doesn’t say anywhere on the bill of particulars that DLA bought the debt, but on the warrant in debt it states barclays as the plaintiff, but then under the plaintiffs and defendant on the warrant in debt, it says “to defendant, you are not required to appear… DLA IS A DEBT COLLECTOR.” I am confused on who is suing, is it Dominion who bought the debt and is the debt collector, or is it Barclays who hired Dominion to sue?? Should we handle the grounds of defense as you have stated?? If not, how would this best be handled since he cannot file 7 again yet? Both of us do not make much and unfortunately aren’t great with money either, so we are trying to avoid garnishments. Sorry for all the questions, but would appreciate any help. thanks a bunch
It’s a lot tougher to fight if Barclays/Juniper is suing rather than a debt buyer. (DLA is a “debt collector” because they are the lawyers helping Barclays collect the debt.) You are right that your husband is not eligible for a Chapter 7 again until eight years after his first one–some time in 2013.
Sometimes in situations like this I put people into a Chapter 13 and try to get the court to approve a payment of $100 per month. You probably can’t afford $100 per month–but you sure can’t afford for your husband to get garnished for 25% of his pay. (Now some of these Juniper cards are for really small amounts. You didn’t tell me how much they are after. Maybe if he goes to court and asks for a trial he can work out a payment plan.)
You definitely should go talk to a lawyer in whatever part of Virginia you are in.
Thanks for the response, so if it says barclays as the plaintiff it is not the debt buyer DLA?, so that means DLA is a debt buyer and works for the actual credit card companies as well? I noticed when looking at their bill of particulars that they say the current balance is 2000+, but then the statements show about 5000, and the warrant in debt is for about 5k. Is there anything that could come out of this discrepancy in the balance they claim? Chapter 13 can be filed prior to 8 years for the hubby?
any advice?