CONSUMER RESOURCES | LINKS

BECAUSE IT’S HARD OUT HERE FOR A CONSUMER™

ATTENTION: PLEASE GO TO THIS LINK AND READ THIS IMPORTANT DOCUMENT

http://courts.delaware.gov/CommonPleas/docs/AD2011-1ConsumerDebt0.pdf

OBSERVATIONS ON MISTAKES DELAWARE CONSUMERS MAKE WHEN DEALING WITH ABUSIVE DEBT COLLECTORS

1. Consumers ignore notices for the Court. Never ignore notices from the Court. The creditor is counting on you either not receiving the notice or not responding to it (defaulting).
   
   
2. Consumers fail to respond to summons. If you fail to respond to a summons, the debt collector can and will obtain a default judgment against you.
   
   
3. The following practice seems to be a common practice in Delaware now: The debt collector may sue a Consumer in Court. Instead of using the Sheriff to serve the Consumer, the collector may use a Special Process Server. The consumer never receives the summons, never answers the complaint, and the debt collectors obtains a default judgment. BUT, the debt collector SITS ON the judgment and waits for two or three years before executing on it...usually by a surprise wage attachment. The first the consumer ever knows of a suit or judgment is when their wages are garnished. The consumer will have a hard time trying to get the Court to vacate the judgment after two or three years. And the wage garnishment will stand.
   
   
4. When served with a summons, immediately contact an attorney. If you cannot afford an attorney, you can file pro se answer (on your own). But by all means, file the answer within the 20 days. In Delaware, you can use Rule 34 of the Rules of Civil Procedure to Request that the Debt Collector produce documents to help you at trial. An example of some documents you may requests are as follows:

REQUEST FOR PRODUCTION OF DOCUMENTS

1. Copy of the original credit card contract between YOU and THEM containing terms and conditions of repayment.
2. Copy of the contract wherein SOME DEBT BUYER purchased the Defendant’s account from Assignee, SOME OTHER DEBT BUYER.
3. Copy of the contract wherein SOME DEBT BUYER bought Defendant’s account from SOME OTHER DEBT BUYER
4. Copy of the last 24 billing statements reflecting any payment activity on the account.
5. Please produce copies of any statements you have taken or received from any person in any way connected with the allegations contained in this lawsuit.
6. Please produce copies of any credit information or payment history information that you have furnished to any credit reporting agency regarding the Defendant’s account, account, including but not limited to Equifax, Experian, and Trans Union LLC.
7. Please produce copies of the documents showing the payment history of the account at the time acquired by SOME DEBT BUYER.
8. Please provide the default date for the credit card.
9. Please provide notes of all Customer contacts initiated by YOU and SOME DEBT BUYER.
10. Please provide any tapes or telephonic recordings between YOU and SOME DEBT BUYER.
11. Please provide any documents which would show the length of the default at the time the account was acquired by SOME DEBT BUYER.
12. Please provide a description of all policies and procedures employed by SOME DEBT BUYER to assure that the Delaware statute of limitations had not expired for bringing an action on the underlying credit card debt.
13. Please provide any information or documents which show if the Defendant’s account was re-aged within the meaning of Section 623(a)(5) of the FCRA
14. Please provide the original credit card number issued by ORIGINAL CREDITOR to Defendant on which this lawsuit is based.
15. Please provide a list of all new account numbers issued or used by the Plaintiff or any of the assignees to identify the Defendant’s original account number or in place of the original account number.

5. If you are filing pro se, call your local Courthouse to inquire about using the local law library. If you are in New Castle County, consider using the law library at Widener University. You can find information on filing pro se at www.delaware.gov. Follow the links to Courts.
   
   
6. You may qualify for free legal assistance from Legal Services Corporation of Delaware (302-575-408). You may also call the Delaware Volunteer Legal Services for assistance (1-800-773-0606). Visit http://www.lscd.com or http://www.dvls.org.
   
   
7. Consumer enters into repayment agreements before reducing all the terms of the agreement to writing. If you enter into an agreement with a debt collector/creditor, be sure to get all promises in writing before sending any payments. You should have an attorney review the agreement before signing it.
   
   
8. Consumer may reset the statute of limitations by sending partial payments or signing promissory notes. BE ESPECIALLY CAREFUL IF you are asked to sign any promissory note. You may inadvertently reset the clock on an expired debt. In Delaware, there is a three year statute of limitation on personal actions like credit card debt. But if you sign an agreement to repay the expired debt or make a partial payment, you may reset the statute (See Title 10, chapter 81, Section 8106; visit www.delcode.delaware.gov).
   
   
9. It is a violation of the Federal Law for a debt collector to sue on a time barred debt. If a debt collector sues you on a time barred debt, contact a FDCPA lawyer immediately. (See http://www.naca.net)
   
   
10. Sometimes all a Consumer wants is relief from creditor/debtor harassment. Under the Fair Debt Collections Practices Act, the consumer has a right to demand that the debt collector cease all communications. Send the debt collector a certified letter demanding that it cease all collection communications. Continued communications is a violation of Federal law. The consumer can sue for actual and statutory damages. If the consumer wins, the debt collector may have to pay the consumer’s attorneys’ fees.

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DELAWARE PRO SE CLIENTS TRIPPED UP BY RULE 56,
MOTION FOR SUMMARY JUDGMENT*

Pro Se clients defending themselves against debt collection efforts in Delaware Courts are routinely losing on summary judgment motions. Pro Se Litigants receive Notice of Motion for Summary Judgment, but they fail to enter a written response to the Court within one day of the hearing and they invariably fail to provide the Court with a written notarized affidavit denying the claims in the motion. That affidavit is due at least one day before the Motion Hearing (Rule 56c) and must be notarized and must specifically deny the material allegations in the Motion. If the Pro Se litigant has failed to complete the Pre Trial Conference Worksheet or has in any other way failed to respond to the Plaintiff's pleadings, the Court may lack any evidence that any material facts are in dispute, and will grant the motion for summary judgment. This means that the pro se litigant loses without a trial. At this point, the pro se litigant may still not appreciate what has happened.

HELP YOURSELF BY TRYING THE FOLLOWING

1. Go to www.delaware.gov, follow the links to Courts, click on the Court in which you have been sued. Find the Court rules and read them, particularly Rule 56.
   
   
2. Take the pre-trial conference seriously. Complete the form as best you can and return it to the Court within 3 days of the hearing at least, 7 is better. You will see why once you start the process.
   
   
3. Remember that no matter how friendly the Plaintiff's attorney is, he is not your lawyer or friend. He represents the other side, NOT YOU. Don't get played.
   
   
4. Even if you owe the debt, don't be so quick to agree that the amount is correct. In all too many cases, the amount is wrong or the interest is calculated wrong. And the statute of limitation may have run out and under the District of Delaware case law, suing on a time barred debt is a violation of the FDCPA.
   
   
5. INCREASE YOUR CHANCE OF SURVIVING A RULE 56 MOTION. RESPOND IN WRITING, ON TIME, AND INCLUDE A NOTARIZED STATEMENT DENYING THE CLAIMS IN THE PLAINTIFF'S MOTION IF THEY ARE IN ERROR OR IF THE AMOUNT IS IN DISPUTE.

*Nothing included herein is intended as legal advice. The above reflects observations on what happens to pro se litigants in Delaware Courts, and suggests that pro se litigants have a better chance in Court if they are knowledgeable of Court rules.

Helping Consumers Help Themselves

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