I found the following boast from an attorney who purchases and collects credit card debt: "It takes a fair measure of success to be able to run a one man law practice AND have sufficient time to fuck around with worthless parasites on the internet. Sometimes I feel guilty. But I've developed a model of practice that allows me to avoid the bother and fuss of "clients." I own a small LLC that purchases charged off credit card debt. That LLC then sends it to me to collect. So Instead of working for someone else and only taking 20%, I take everything I collect. I'll buy a portfolio of about $6 million on total charged debt ( includes the crazy penalty interest) and pay anywhere from Six to Eleven Cents on the dollar. Of the total worth of the portfolio I can get maybe 60% and sometimes more. And the hell of it it that I really don't try all that hard. And interestingly the whole process is all paperwork from my office which I've automated using merge documents. It's all paper work because everybody defaults. They get their notice to appear in court and they simply ignore it. Everybody defaults that is except those who really don't owe the money (this does happen) and they are all over it like white on rice. I send them their initial dunning letter and they light up my office phone till the matter is straightened out. Those people are the most work, because I help them go back to whomever it was that first reported them as not having paid a debt. All you need is a law license."

Posted by Anderson M. Simmons at 11:58 AM | Permalink | Comments (0)

Here is a list of my victories against the credit card debt collectors since 2008.

1. Dodeka, LLC v. S.P., Travis County, July 2008. Case dismissed after I filed for summary judgment.

2. Dodeka, LLC v. R.S., Travis County, September 2008. Case dismissed after I filed for summary judgment.

3. Dodeka, LLC v. E.W., Travis County, October 2008. Case dismissed after I filed for summary judgment.

4. L.G. v. Dodeka, LLC, Travis County, October 2008. After getting Dokeka's case dismissed against my clients in Denton County, I filed a FDCPA lawsuit against Dodeka and its lawyers in Travis County. Dodeka paid us $3,037 to settle. My clients received $1,500 of this and the rest went to my attorney fees. The case against the lawyer is still pending.

5. Dodeka, LLC v. B.M., Williamson County, February 2009. Judgment for my client.

6. Unifund CCR Partners v. C.E., Travis County, April 2009. Unifund dismissed its claims and paid $2,000 to my client to reimburse her for my attorney fees and for statutory damages.

7. Capital One v. F.T., Travis County, April 2009. Case voluntarily dismissed.

8. CACH, LLC v. M.A., Williamson County. My motion to vacate an arbitration award was granted and the case was dismissed with prejudice.

9. Unifund v. L.P., Williamson County, June 2009. Amount of claim: $28,693.71 plus attorney fees and interest. We settled for $500.

10. Pharia, LLC v. K.J., Bastrop County, June 2009. Case dismissed after we filed for summary judgment.

11. CACH, LLC v. W.W., National Arbitration Forum, June 2009. Claim voluntarily dismissed after I filed a petition to stay arbitration.

12. Discover v. K.L., Harris County, July 2009. Case voluntarily dismissed after I filed for summary judgment.

13. CACH, LLC v. A.B., Travis County, August 2009. Case voluntarily dismissed.

14. Portfolio Recovery Associates v. P.S., Travis County, August 2009. Case and counter-claim mutually dismissed by agreement after I filed for summary judgment.

15. CACH, LLC v. P.K., Travis County, August 2009. This was a lawsuit to confirm an arbitration award of over $65,000, which was awarded against my client prior to my representation. After I was hired, I filed a plea to the jurisdiction and the case was dismissed.

16. Amex v. D.W., Travis County, September 2009. Amount of suit was over $200,000. Case was voluntarily dismissed after I defeated AMEX's motion for summary judgment and after the court order the parties to mediation.

17. Dodeka v. W.W., Lubbock County, September 2009. My client paid $500 to settle.

18. Midland Funding v. E.O., Hays County, September 2009. Case voluntarily dismissed.

19. Midland Funding v. M.B., Parmer County, September 2009. Plaintiff dismissed the case and paid us $650 in attorney fees.

20. Pharia, LLC. v. R.M., Brazoria County, September 2009. My client paid $500 to settle. I filed a motion for summary judgment but the settlement saved my client my travel expenses.

21. Chase Bank v. L.B., National Arbitration Forum, October 2009. Claim voluntarily dismissed after I filed a petition to stay the arbitration.

22. Pharia, LLC v. L.F. November 2009, Dallas County. I filed a motion to dismiss. My client paid $500 to settle in order to save on paying for my travel expenses to Dallas.

23. Hilco Receivables, LLC v. E.W., Travis County, December 2009. Case voluntarily dismissed after I filed a motion for summary judgment.

24. Arrow Financial Services, LLC v. J.P., Travis County, December 2009. Case voluntarily dismissed after I filed a motion to dismiss.

25. Discover v. D.W, Williamson County, January 2010. Case voluntarily dismissed.

26. Asset Acceptance LLC v. N.B., Travis County 2010. Case voluntarily dismissed by plaintiff in open court during our motion for summary judgment, when it wasn't going so well for them.
27. CACH, LLC v. A.G., Travis County, January 2010. Case voluntarily dismissed.

28. Midland Funding, LLC. v. A.R., Travis County Febuary 2010. Case settled by Midland Funding LLC paying my client $1,000.00 on a FDCPA counterclaim.

29. Capital One Bank v. J.D., Travis County, April 2010. Case voluntarily dismissed.

30. HSBC Bank v. K.W., Williamson County, April 2010. Case voluntarily dismissed.

31. CACH, LLC v. J.T., Travis County, May 2010. Case voluntarily dismissed in open court.

32. Discover v. R.P., Williamson County, May 2010. Case voluntarily dismissed.

33. Travis County case, confidential settlement, plaintiff paid us attorney fees and damages on FDCPA counterclaim, June 2010.

34. CACH v. C.Y., Williamson County, June 2010. Case voluntarily dismissed.

35. LVNV Funding, LLC v. D.C, Hays County, June 2010. Case voluntarily dismissed.

36. Pharia, LLC v. J.O., Hays County, June 2010. Court granted special exceptions and dismissal is pending if plaintiff cannot produce evidence.

37. Pharia v. D.C., Travis County, July 2010. Court granted plea to the jurisdiction and dismissed the case.

-updated July 2, 2010

Posted by Anderson M. Simmons at 10:20 AM | Permalink | Comments (0)

Under Texas law, the statute of limitations on a credit card debt is four years from the last payment. If the lawsuit is not filed by this deadline, the statute of limitations can be raised as a complete defense to the lawsuit. But you have to plead this affirmative defense. You have to raise this as a defense in your answer to the lawsuit, and you have the burden of proof. Sometimes you'll find the evidence in the plaintiff's own documents or even in their pleadings. Other times you'll have to prove it from your own documents and testimony.

Tex. Civ. Prac. & Rem. Code §16.004(a)(3) establishes a four year statute of limitation on an action for a debt, and the four years starts running from the day the cause of action accrues. In a breach of contract case, the cause of action accrues at the time of the default. Jones v. Blume, 196 S.W.3d 440, 446 (Tex.App.--Dallas 2006, pet. denied). If the debt action is on an open or stated account, the cause of action accrues on the day of the last payment by the debtor. Livingston Ford Mercury, Inc. v. Haley, 997 S.W.2d 425, 429 (Tex.App.--Beamont 1999, no writ.), Tex. Civ. Prac. & Rem. Code §16.004(c).

But it gets better.

If a debt collector files a lawsuit against a consumer to collect on a credit card debt after the statute of limitations has run, and if the debt collector knew or should have known it was past the statute of limiations, this is considered to be an unfair and unconscionable practice. It is a knowing and intentional violation of 15 U.S.C. § 1692f of the Fair Debt Collection Practices Act (FDCPA). Kimber v. Federal Financial Corporation, 668 F. Supp. 1480, 1487 (M.D. Ala. 1987).

In such cases, I file a counterclaim for violation of the FDCPA and seek damages and attorney fees. When we can prove the statute of limitations and a violation of the FDCPA, the end result is that the debt collector's case is dismissed and the debt collector has to pay damages and attorney fees.

Posted by Anderson M. Simmons at 8:26 AM | Permalink | Comments (0)

I continue to beat the debt collectors on third party credit card cases and on occasion, they end up paying us instead for violating the Fair Debt Collection Practices Act. I have yet to lose one of these cases.

These are not to be confused with lawsuits brought directly by the credit card companies themselves. While I can defend those, they are usually far more difficult.

Consistently, I have found that when the credit card debt has been purchased by a debt collector, the debt collector does not have the necessary admissible evidence to overcome my properly raised hearsay objections. Usually, the debt collector cannot prove that it actually owns the debt, or cannot prove the amount of the debt. It isn't for lack of trying or lack of bluster on their part. They invariably come forward with documents they claim prove their case. But these documents seldom meet the requirements for the business records exception to the hearsay rule.

Sometimes, these battles are hard fought, and other times they come relatively easy. For example, in the past few months, I had one credit card case in which the debt collector was about to go to trial. I got hired by the consumer at the last minute, soon before the pretrial hearing. The debt collector didn't show up. Whether that was because I had made an appearance, I can only speculate. Of course, the case was dismissed.

Another case had lingered for over a year. I had done my discovery and everything else I knew to defend the case and was simply waiting for the plaintiff to make a move. Then the debt collector simply dismissed the case out of the blue one day. Oddly enough, this case was brought by the credit card company and not a third party debt collector. Thus, they had access to the evidence they needed but just gave up, for reasons only known to them.

Strangely, the debt collectors who fight me the hardest are the ones who have the most rotten cases. I used to routinely see them drop these cases soon after I started defending them, but now they seem to want to fight. I don't know if this is a function of the economy or because they are getting tired of me beating them and think somehow they are going to school me. This is foolish on their part. You do not school your opponent by going to trial with your weakest case, unless you think it somehow schools your opponent by handing him an easy victory.

I have seen a drop in the number of cases they are filing past the statute of limitations deadline, but they're still doing it. It's a violation of the Fair Debt Collection Practices Act (FDCPA) for a debt collector to serve a lawsuit on a consumer for a consumer debt if the lawsuit was filed after the statute of limitations and the debt collector or their lawyers knew or should have know that it was past the statute of limitations.

In Texas, the statute of limitations is four years. Usually it is calculated from the date of the last payment, because that is the date of your last "dealing" with them. If it has been more than four years since your last payment and the time they file suit, you may have a FDCPA claim. If so, you may be able to recover statutory damages of $1,000 per suit, plus actual damages, attorney's fees and court costs. And of course, their claim against you should be completely barred by the statute of limitations. So, on these cases, they get nothing, my clients get some damages, and we can make them pay the attorney's fees.

You do, however, bear the burden of proof on the statute of limitations defense and the FDCPA. I am often asked how can we prove this defense? Well, your own testimony is proof, assuming you remember when you made your last payment. Your bank records are another source of proof. Your old credit card statements are another source.

Other times, we rely upon information provided by the plaintiffs. Incredibly, these plaintiffs sometimes state in the petition or its exhibits when the last payment was made. If that date was more than four years before they filed suit, they have a problem. In those instances, I strongly recommend to my clients to file a counter-claim for violation of the FDCPA. It is hard for them to claim they didn't know the debt was past the statute of limitations when you can tell it is just from reading the petition.

A growing trend in credit card debt collection is to file the claims with the National Arbitration Forum (NAF). A consumer group did a study and found that the debt collection and credit card industry wins those arbitrations about 94% of the time. The perception is that this is not a fair forum. This much I know. Its rules of procedure afford a defendant much less opportunity to defend his or her self than the defendant would have in a Texas state court. It is my perception that the arbitrators at the NAF will be much more lax about the rules of evidence than would be a Texas state judge.

Thus, the key to winning before the NAF is not to go there in the first place. Before consenting to arbitration before the NAF, the debtor should first determine whether he or she ever signed an arbitration agreement or otherwise agreed to arbitration.

Typically, credit card companies send consumers a notice of some kind informing them that if they continue to use the card, they are agreeing to arbitration. Or so the credit card companies claim. If the credit card company cannot prove that there was a binding, valid arbitration agreement, then the consumer can either file an objection to the arbitration with the NAF, or file a petition in state court to stay the arbitration.

Assuming you can afford the filing fee, I recommend filing a motion in state court and not just relying upon filing an objection to the arbitration forum itself. Why? Somehow, I don't expect the arbitrators with the NAF are going to side against themselves and rule there was no arbitration agreement. If they do that, they are biting the hand that feeds them.

Posted by Anderson M. Simmons at 6:54 PM | Permalink | Comments (2)

-Have you been sued (or threatened with suit) for an old credit card debt?

-Have you been sued by someone other than the original creditor?

-Sued by some company with an odd sounding name like AIS Services, CACH, Credigy, Commonwealth, Dodeka or Unifund?

-Is the debt past the statute of limitations?

-Did you already pay off or settle the debt and still they are suing you?

-Are they harassing you?

I have helped a lot of people with these cases. The usual outcome is that I get the case dismissed. Sometimes I can even recover your attorney's fees and damages.

Part One: About me

Civil litigation is a major part of my law practice. My clients tend to be small businesses, but I also represent individuals. I have been an attorney since 1995. I have successfully defended people against many credit card cases.

www.creditdefenselaw.com

Part Two: The Statute of Limitations Defense

There are time limits on filing a lawsuit. These are called "statute of limitations." Under Texas law, the statute of limitations on credit card debt is four years from when you breached your contractual obligation to pay the credit card bill. If more than four years have passed since your credit card became past due and you have not made a payment since then, the statute of limitations has probably run. If the credit card company did not file the lawsuit until after these four years, then you should be able to get the case dismissed.

Unfortunately, there are things you can do to reset the statute of limitations clock, like making a payment or signing an agreement with the credit card company.

The statute of limitations is an affirmative defense. This means you have to raise the defense in your answer to the lawsuit. You also have the burden of proof on this defense. This is something you should be able to prove by looking through your bank records and credit card records. At the very least, you need to be willing to testify under oath that the default was more than four years ago.

Part Three: Other Defenses: Standing To Bring the Lawsuit

Often times, the companies who purchased these debts from the credit card companies don't have sufficient records to prove that they actually own the debt. They try to fake it, but their so called "business records" often are inadmissible if you know how to challenge them. If they can't prove they own the debt, I can get the case dismissed.

Part Four: The Fair Debt Collection Practices Act

If a debt collector sues you (or even threatens to sue you) for a debt that it knew (or should have known) was past the statute of limitations, that is a violation of the Federal Fair Debt Collection Practices Act (FDCPA). If you can prove they violated the FDCPA, you can sue them for actual damages, statutory damages of $1,000, and attorney's fees.

Other violations of the FDCPA include making threats to put a lien on your homestead, threats to have you arrested, misrepresenting themselves as law enforcement or a government agency, calling you at odd hours, refusing to verify the debt, and so on. There is a whole list of bad behavior that violates the FDCPA. If you hire me, I will go through the facts of your case with you to see if you have a FDCPA claim.

Filing a countersuit for violation of the FDCPA can be a very effective strategy, and it is the main method by which you can recover attorney's fees and damages in these cases.

Part Five: Settlement

Sometimes, the plaintiffs do manage to prove the debt, there is no statute of limitations defense, and the violations of the FDCPA, if any, add up to less than what you are being sued for. In those cases, it is not likely that the case will get dismissed, but I can try to negotiate a favorable settlement.

Part Six: Contacting Me

You are probably wondering what it will cost to hire me. After you and I have discussed your case, I will be glad to explain my fees to you. I won't charge you anything to call or email me to discuss whether or not I am willing to take your case. I won't charge you anything to discuss my fee arrangements. The first call is free.

If you are thinking of hiring me, don't delay. The deadline to answer a lawsuit is pretty short, and it is really short in the small claims and justice of the peace courts.

Part Seven: Information I Need

If you email me or call me, please have the following information ready:

-your name, address and telephone number;

-the geographic location of the court and the name of the court;

-the date on which you were served with the lawsuit;

-the last date on which you paid the credit card;

-the date the lawsuit was filed (look up in the top right corner of the first page of the petition for a date stamp);

-the amount you are being sued for;

-the name of the lawfirm or lawyer who is suing you; and

-the name of the plaintiff who is suing you.

Part Eight: Past Outcomes

Past outcomes or results are no guarantee or prediction of your results. Each case is unique and the outcome depends on the facts and other factors.

Having said that, people nevertheless want to know what kind of results I have obtained in these cases.

The most common result is that I get the case dismissed without my client paying any money to the debt collector. While my clients do have to pay my legal fee, my legal fee have always been far less than what they were being sued for and less than what the debt collector would have been willing to settle for.

In some cases, I also am able to recover damages and attorney's fees. To get damages and attorney's fees takes a stronger case than those that just result in a dismissal. We have to be able to prove that the debt collector knowingly violated the FDCPA or otherwise acted carelesssly or in bad faith. If I recover a sufficient amount of attorney's fees on the counterclaim, then my representation ends up being free for my client, and any damages collected are paid directly to my clients.

please visit my other website devoted exclusively to credit card lawsuits: www.creditdefenselaw.com

If you wish to contact me about your case, please send me an email. Please do not submit a comment to this blog for that purpose. You can email me at info@simmonspc.com

Posted by Anderson M. Simmons at 1:32 PM | Permalink | Comments (5)