Original creditor NOT same as creditor sueing me

[ldyroper]

What is the name of your state? MT

Being sued (recvd complaint and summons- which I answered) by Sherman Acquistion They now own my alleged debt - they state original creditor is Citibank. Well, Sears, was the original creditor. I have NEVER had a Citibank card. Citibank purchased sears i n 2003. My dola on my credit report is 2001, so I was never even mailed a Citibank card. My question- in the FDCPA rules under 809 #3, its states," A notice need not offer to identify the original creditor UNLESS the name and address of the ORIGINAL creditor are different from the current creditor. "
Since No One has even mentioned Sears, is this a violation ?

 

[Debt Guy]

In my opinion, you are really stretching for a way to dodge this bullet.

FDCPA prohibits misrepresenting the debt. The question for the judge to decide is whether this is really a "misrepresentation" in a meaningful sense. In my mind, the judge will ask how this misrepresentation harmed you. I don't see the harm as I don't see any intent to deceive.

But, I'm not the judge.

If this is a FDCPA violation, at best you can use it as a cross-claim or as the basis for a new lawsuit against the creditor. I would think it extremely unlike the judge would kick the instant case.

I'm pretty sure this is not the answer you were looking for. Someone else may think differently and, if so, they will chime in.

Have you considered a tactic of trying to settle with Sherman on the matter?

Do you think you could be successful with a strategy to make Sherman prove the debt?

Is the debt out of statute?

 

[ldyroper]

If considered an open contract (which revolving = open) than its past SOL(5 yrs). If they insist its a written contract then its just 1 yr shy. ( 8 yrs) Sherman has not validated yet, and Ive asked the attorney for them twice. I wanted a signed agreement from citibank. I dont know if they can produce, as I opened my sears account in 1994. Anyhow I need now to file with the courts asking for proof, for the discovery. Sherman offered me a settlement of 60% of debt which included 3500 worth of interest and fees of $6500.00 . If I have no validation of sort, no way. I believe at time of last payment, account was at around 5,000. so Id settle on maybe 2000.00 since this is a JDB anyhow.

 

[JETX]

Here is how I see this unfolding in court:
1) You will ask them to prove they have the legal right to sue. They will provide proof that they are the current owner of the debt. You lose.
2) You will challenge the accuracy of their claim. They will present bills and statements. You lose.
3) You challenge the lawsuit as SOL has expired. You will argue that the underlying cause of action is beyond the 'open account' limit. They will argue that the account is a written contract and subject to that SOL. The court will rule as they see fit.

 

[Debt Guy]

I think Jetx is right. The only thought I can add is to look to ND law for the definition of an open account.

As a rule of thumb, credit cards are not open accounts. But, department store charge cards are open accounts. If this Sears card was truly a department store charge card and never used anywhere but Sears -- then you got a shot.

Expect Sherman's lawyer to argue differently. You must find something in the state law or a precedent that supports your view.