Girlfriend Served

[Patrick15]

What is the name of your state? AZ

My girlfriend was served notice. She is not my spouse. Is this a violation of the FDCPA § 805 (b) or is it exempt since it was service of summons? The "summons" was the court documents and a copy of one contract unsealed.

The collector lists the debt as for a Visa/MasterCard, the debt referenced in the signed copy of the contract they provided was for overdraft protection on a checking account with a credit union. (The contract lists it as an open-end credit plan)

The signed contract shows my credit limit at $500 but they show the debt for $976.70. That is actually an amount owed for overdraft protection and a MasterCard. They did not provide me a copy of the MasterCard contract.

They show a collection fee of 50% ($488.35), I don't show that being legal under A.R.S. sec. 6-635, does that statute apply to a credit union?

They show interest of 15.5% but show $0.00, they lumped the interest in with the principal.

They are adding attoryney's fees of $500 which seems legal under A.R.S. sec 12-341 and 12-341.01.

I sent a certified request for debt validation which was signed for on 10-25-04. The served summons on 12-07-04. Are they in violation of 15 USC 1692g Sec. 809 (b) for taking more than 30 days to respond?

A.R.S. sec. 6-631 (b) requires a statement in spanish near the signature line which is missing and (c) requires a sign stating that spanish documents are available. I don't speak spanish but still want to know if this section applies to a credit union since neither was fulfilled.

Page one of the contract states that I agree to page two but I never signed or initaled page two, can that be upheld?

I live in Mesa AZ but they are using a Glendale court, 30 miles away, same county, I think that is legal but does anyone have an opinion? (I live in Mesa and the Contract was signed in Mesa)

Should I file a certificate of compulsory arbitration as allowed under AZ law?

Lastly, I never signed a contract with the CA, I don't think page two covers transfer of the balance but it's illegible in the copy they gave me, is there any real legal basis for a 3rd party to sue me?

Do you guys think I have a chance? Thanks for your help.

P.S. I thought the SOL was 5 years for a written contract in AZ but it's 6 per A.R.S. 12-548 and the contract was signed 07-25-1999, no luck there.

 

[Patrick15]

3 year sol?

I'm seeing some references to a 3 yr SOL in AZ on open ended accounts.

The closest I can find is A.R.S. 12-543

12-543. Oral debt; stated or open account; relief on ground of fraud or mistake; three year limitation

There shall be commenced and prosecuted within three years after the cause of action accrues, and not afterward, the following actions:

1. For debt where the indebtedness is not evidenced by a contract in writing.

2. Upon stated or open accounts other than such mutual and current accounts as concern the trade of merchandise between merchant and merchant, their factors or agents, but no item of a stated or open account shall be barred so long as any item thereof has been incurred within three years immediately prior to the bringing of an action thereon.

3. For relief on the ground of fraud or mistake, which cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.

Does that mean 3 years or does line 1. "not evidenced by a contract in writing" put me back to the six year SOL?

Last question, can I get an opinion on this answer assuming the 3 year SOL is correct?

Thanks again.

I invoke my right to request validation of this debt under the validation notice.

Statute of Limitations expired for Open-ended account. A.R.S. sec. 12-543

50% collection fee not legal. A.R.S. sec. 6-635

Amount claimed owed for contract exhibit "A" is false.

Interest charges listed as principle on untitled exhibit is not legal. No "Truth in Lending Disclosure" near signature line on contract. A.R.S. 6-631 and 15 United States Code sections 1601 through 1666j

Page two exhibit "A" not legible, no initial or signature present.

No contract exists between Defendant and Plantiff.

Plantiff violated 15 USC 1692g Sec. 809 (b). No response to validation letter.

 

[Ladynred]

You should not be requesting validation are part of your Answer to their complaint.

Proper responses to the allegations in a complaint are :Affirm, Deny, lack sufficient knowledge to answer.

http://www.legalhelp.org/answering_complaint.htm

You can use their violations are your affirmative defenses along with the expired SOL:

http://www.legalhelp.org/affirmative_diffense.htm

 

[Patrick15]

Arizona law requires that I invoke my right to request validation of the debt if I wish to preserve those rights.

Included with summons

Your rights under the validation notice are separate from the lawsuit above (summons & complaint). Under the Arizona rules of civil procedure ("ARCP"), you have 20 days after service of the summons and complaint to appear and defend the lawsuit. Whether you defend this lawsuit or not, under federal law, you still have 30 days after reciept of this notice to request validation of this debt. If you appear and defend the lawsuit as set forth by the ARCP and if, at the time, you want to invoke your right to request validation of the debt under the validation notice, in your appearance and defense, please include a statement in your answer that you invoke the right to request validation of the debt under the validation notice.

Once again you have given false information LadyNred.

Regarding my answer, you are right I should be citing the numbers in the complaint. I will refer to my attorney for that.

Before I actually see my attorney anybody have a real answer on whether Federal law was violated by serving a third party?

Thanks.

 

[stevek3]

Arizona law requires that I invoke my right to request validation of the debt if I wish to preserve those rights.

Included with summons



Once again you have given false information LadyNred.

Regarding my answer, you are right I should be citing the numbers in the complaint. I will refer to my attorney for that.

Before I actually see my attorney anybody have a real answer on whether Federal law was violated by serving a third party?

Thanks.

Sorry, Bud, outta luck. I know you're scrambling for something and anything at all to use as leverage, but the person who serves process is not defined as a debt collector.

 

[Patrick15]

Damn, you're right Steve, just found it.

(d) Service of Summons Upon Individuals. Service upon an individual from whom a waiver has not been obtained and filed, other than those specified in paragraphs (e), (f) and (g) of this Rule 4.1, shall be effected by delivering a copy of the summons and of the pleading to that individual personally or by leaving copies thereof at that individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the pleading to an agent authorized by appointment or by law to receive service of process.

 

[Patrick15]

I'm not scrambling!

Sorry, Bud, outta luck. I know you're scrambling for something and anything at all to use as leverage, but the person who serves process is not defined as a debt collector.

Actually if I know how to read I'm right, serving someone other than me is a violation of Federal Law.

http://www.ftc.gov/os/statutes/fdcpa/letters/berger.htm

3) Because of Heintz v. Jenkins, all pleadings must be considered "communications" if they convey "... information regarding a debt directly or indirectly to any person through any medium."

Yikes, got scared when I read this but then noticed the date is prior to Heintz.

http://www.ftc.gov/os/statutes/fdcpa/letters/lascuola.htm

 

[stevek3]

Actually if I know how to read I'm right, serving someone other than me is a violation of Federal Law.

http://www.ftc.gov/os/statutes/fdcpa/letters/berger.htm

3) Because of Heintz v. Jenkins, all pleadings must be considered "communications" if they convey "... information regarding a debt directly or indirectly to any person through any medium."

Yikes, got scared when I read this but then noticed the date is prior to Heintz.

http://www.ftc.gov/os/statutes/fdcpa/letters/lascuola.htm

Uhh...no. I already said it to you, but I'll say it again: A PERSON WHO SERVES PROCESS IS NOT A DEBT COLLECTOR.

 

[Ladynred]

Its not Federal law that prevails, the AZ statute clearly says they do not have to serve ONLY YOU personally. Federal law does not always preempt state.

As for giving me grief about my answer, I do not research EVERY SINGLE state statute for every possible scenario someone may post here. You got your answer in the AZ statutes, but in most states validation is NOT spelled out as it is in AZ statutes. Lucky you to live in a state that has amended its statutes to include validation as part of its rules of civil procedure.

 

[Patrick15]

Ok Ok, I take it back!

I saw my lawyer today and he says the debt collector attorney added that thing about arcp himself and it is not factual.

Yes he agrees with you guys on the serving thing too.

Sorry for the grief ladynred.

Anyways those are the reasons I actually use attorneys rather than go pro se.

Looks like we still have a case even with my misguided and misunderstood foray into the legal world and nothings coming out of my pocket.

Last post on this for a few months till its settled unless it another darn non disclosure agreement, damn I hate those things!

 

[Ladynred]

Well.. its a good thing you can afford an attorney Doesn't surprise me in the least that a collector LIED !

Good luck !

 

[Patrick15]

Case closed, deleted from credit bureau, their case withdrawn with prejudice, cash in my pocket