Post Number: 1
|Posted on Wednesday, January 07, 2004 - 11:34 am: ||
First, thanks to all whose posts helped me put my case together.
Filed Ch7 last March. BankOne immediated filed 523 claim that I committed fraud supposedly because I did not intend to pay...
Using this and related forums and lots of research, I learned - among other things - this is a strategy used often. Try to get the person to reaffirm a debt and settle, when he/she could easily win simply by showing up at the court hearing. Then stickem with a 1099 forcing tax payments on the amount forgiven.
When reading the law on Sect 523, it is clear that the Plaintiff has to have an overwhelming amount of evidence and that seldom happens.
I noticed the CRA comment, Sold to Weinstein and it finally hit home. I called BankOne and was told the account was sold and Weinstein was a collection agency. I got the phone number and called. Sure enough, they bought the account the same month I filed.
Regardless of before or after the date filed in March, BankOne/First USA did not own the account and could not collect.
In November I told my attorney that I'd take care of this myself. He notified the court of my ProSe status. I only learned about my January Hearing because I subscribed to the PACER court system.
Plaintiff's attorney filed a notice of service certifying I'd been served by Certified Mail/Return Receipt. That was impossible, because my street number wasn't on the document filed and I'd received no notice of the past December hearings where they filed for a default judgment.
I made sure Plaintiff got my Adv response filings by both mail and Email. Pretty much damming BankOne to failure.
Appeared in Federal Court yesterday and guess what? BankOne/FirstUSA attorney was a no show. I addressed the court and explained what was happening. Great Judge! He told me I could file a formal charge against the attorney for failing to serve me, but suggested strongly that might not be worth the effort.
The Judge then tells me he is issuing a "Notice to Show Cause" why the Plaintiff’s case should proceed and scheduled another hearing for 30 days. His hand-written comment: If necessary!
Just so happened that my original Attorney showed up since he had another case. He said he thought that my substantive responses scared Plaintiff's attorney who also did not wish to be publicly flogged by the court in front of the dozen or so other attorneys awaiting case call at this session.
FYI: PACER access is very cheap at $.07/page. I used MS Word's Legal Pleading Wizard to prepare the responses.
Do a search on ask.com for: how to answer a lawsuit for debt collection. It'a great reference. Be sure to check the individual court requirements for basic format/font/etc. Here it was easy and the clerk even has a scanner so that you scan docs to disk and they upload to court files. No charge to answer an adversary complaint.
Hope this helps some of you,
Post Number: 24
|Posted on Wednesday, January 07, 2004 - 12:24 pm: ||
Thank you Bob that was a nice boost to me.
This is my lawsuit against FUSA.
Post Number: 3
|Posted on Friday, January 30, 2004 - 10:29 am: ||
Thanks to everyone! The material on this site was a valuable part of preparing a counterclaim and putting the BankOne/FUSA attorney on the defensive.
From: "FUSA ATTY"
Subject: Re: Dischargability Complaint; FUSA v.
Date: Fri, 30 Jan 2004 07:05:13 -0600
X-Mailer: Microsoft Outlook Express
Bob: I have tried to reach you by telephone and email to discuss this matter and I appreciate you getting back with me. FUSA has determined that it does not desire to continue to pursue this matter so long as all of the proceeding is simultaneously dismissed without further expense or hearing. That appears to be what you are proposing.
I will prepare a Joint Motion for Dismissal of all claims and counter claims and send it to you
electronically for your review. Please let me know if you have any questions or comments.
FUSA / Bank One Attorney
Post Number: 1803
|Posted on Friday, January 30, 2004 - 03:18 pm: ||
Thanks for the update!
I just wished they had to pay for your time.
Bank One/FUSA had to be put in place, they are way out of line.