attorney placement pending (discover card)

i just received a letter today from Discover Card, it reads:



October 14, 2004





John Doe

1234 Main St

Sometown US, 10000



ATTORNEY PLACEMENT PENDING



ATTENTION: John Doe

REGARDING ACCT: XXXXXXXXXXXXXXX

BALANCE: $8000.00



Dear John Doe,

We have been authorized to preceed with legal action to secure the balance you currently owe us as of October 14, 2004.



If we do not hear from you by 8:00pm Eastern time on October 31, 2004, your account will be forwarded to an Attorney to obtain judgement against you.



To stop this action, call us immediatly to make acceptable payment arrangements.



CALL NOW BEFORE YOUR TIME EXPIRES!



Sincerely,



Doug Martin



############################################



My plan was to go ahead and do a NbWC/SA just for sh*ts and giggles and then a few days later send them the 9-page VoD package. i have already begun with the CRA's, received a reply from Equifax stating they are investigating my concerns (debt validation). and a useless response from TU listing what the FCRA allows. i am still in receipt of Experian. both CRAs replied within two days of my letters.



please bear with me.., i am a newbie, lots of information to absorb. i wanted to post this thread to track my progress and receive feedback.



thank you all for the information you have put forth!!!

[Drob]

I say good job using the CRA's to build a paper trail no certified validated discover card debt, case dismissed. Stay on top of the CRA's afterall they are their to protect the consumer (though they try to protect the other side). TU can be slippery stay on them. Use the FCRA to hold them accountable and cc the Federal Trade Commission and the Attorney General to let them know you mean business that you will seek to involve their own against them (cool). You are on the right track. No evidence (original aggreement)- no case, No rebuttal of VoD - no case, No witness to testify for plaintiff- no case. Lets not forget matters of subect jurisdiction (credit matters belong in a federal court). motion to dismiss for being stupid enough to try an enlightened soveriegn.



P.S. in your motion for dismissal counter sue their butts off and make sure they no not to try this matter on appeal without any new evidence.

[Ice]

Note: They cannot "transfer" a CC account without prior notice.



You've been noticed.



Ice

[Jerseee]

Is there even a valid debt?



Watch how you answer that.....take your time and think.

i guess we will find out in their response. although i can tell you one thing, i NEVER signed any agreement or application. the account was opened over the internet.



sorry for the dumb question, but regarding the certificate of nonResponse, the notary needs to receive/not receive a response directly from the bank? so in my VoD i put the notaries address c/o me? the notaries dont have a problem accepting mail for you?

[bulldozer]

That sounds interesting, my wife got a discover card and she told me she never signed anything either, it was done over the phone.

Drob,



Can you elaborate on credit matters belonging in federal court or point me in a direction where you learned this? I wish the issues you listed above were so easy as you make it sound!



droog79,



Yeah, they don't need your actual signature to open your account. This may be considered an "electronic signature", but I don't know anything about those. Regardless, your actions of the use of the account will be considered your acceptance of the contract. The "dispute" is now over the validity and terms of the contract/account.



-squirrels

[Drob]

Squirrels,

Use 15USC 1692 and 15 USC 1666 to move the issue into a federal court, don't forget to challenge subject matter jurisdiction( listen to cornforth) not venue. Credit is a Federal problem, easily won, a problem none the less

please critique my reply. i think i am just going to play the field before i go all out with a formal VoD package and want to keep my initial response simple and to the point. at least this gives me time to setup my UCC Filings.





##################################

Mr Creditor,



I am writing in response to your letter dated October 14, 2004 that this written communication is not a refusal for paying the alleged debt implied.



I wish to remedy this situation and will tender payment upon verification of this alleged account in accordance with law as codified at 15 USC 1692g(b):

“If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.”



Be advised that verification is defined (in Blacks Law Dictionary, Sixth Edition) as follows:

“Confirmation of correctness, truth, or authenticity, by affidavit, oath, or deposition. Affidavit of truth of matter stated and object of verification is to assure good faith in averments or statements of party.”



Looking forward to your prompt reply.



Regards,

Debtor

##########################################



do you think its necessary for me to point out that an invoice, statement, bill, etc does not constitute verification?



thanks!!!

Drob,



Like I said - I wish it were that easy! I mean it kinda is, in that one can always put in a motion to dismiss b/c a claim belongs in Fed. court for any reason under the sun, the burden shifts to plaintiff to prove otherwise, and then hope that the plaintiff isn't worth the bar # printed on the complaint and he does not or cannot respond well enough to keep it in state court - unlikely IMHO for this scenario. The problem here (and the reason I asked) is that the plaintiff is known as the master of his claim. Just b/c there is or may be a federal statute involved in the case does not confer jurisdiction to a federal venue. So, b/c the case may be decided under a federal statute in whoever's favor, or the federal question is raised in the answer, or even the counter claim, does not (generally) confer jurisdiction to a federal court. Look up what is known as the "well-pleaded complaint rule" and this should explain what I am talking about if you have forgotten or are not familiar with it. To dismiss or remove a case b/c it belongs in federal court is (generally) limited to the matters raised on the face of the complaint/claim, and if the plaintiff does not raise a federal question, the state court likely has jurisdiction over the subject matter. The key to keeping these matters in federal court (if that is what one wants) is to beat the CCC to the punch and file first as plaintiff under the applicable federal statute(s). However, as you stated, credit is a federal matter (I think state banks are basically extinct, and essentially it is our credit being extended/exchanged to us per the USA Corp.). So, there may be premption under the National Bank Act, if one can convince the court that there is no state cause of action or it is prempted b/c the underlying substance of their alleged state claim (breach of contract or default on account stated) is rooted in the extension of federal credit and is a contract under federal law with a federally chartered corporation. Basically, show that the state has no interest in plaintiff's claim.



Anyone have any admiralty theories on dismissal from state courts? I would be interested to hear about these.



droog79,



15 USC 1692 is inapplicable to your situation. Your alleged creditor is not a debt collector. Look to the statute Drob raised of 15 USC 1666 for this letter if that is what you want to do.



-squirrels