Some plaintiffs, like credit card issuers, win almost all of their cases by default.

When the Sheriff  serves you, the clock starts running.  In Pennsylvania, after 20 days following sheriff service the plaintiff sends you a notice in the mail saying that default judgment will be taken if a response is not filed in 10 more days.

So basically, you have a little more than 30 days (depending how quickly the letter is sent) to file something in writing. If you don’t do anything, you lose!

So, as soon as possible, talk to a lawyer. If you are not sure that this particular lawyer handles this particular kind of case, ask him or her to recommend the right lawyer to represent you.

But don’t give up without a fight. And don’t forget the time limits.

Here’s a story on point that a lawyer I know told me today.  He filed preliminary objections (on time) to a complaint by a major credit card issuer against his client.  It seemed like an open and shut case — after all, the defendant had used the card. But the complaint was not “verified” (signed) by a representative of the plaintiff, as required by the rules of civil procedure.  Instead, the verification page was signed by  the plaintiff’s lawyer, a practice that is commonplace, but usually not authorized by the rules.  After oral argument on this single issue, the judge gave the plaintiff twenty days to obtain a proper verification.

Twenty days later, the plaintiff hadn’t filed the proper verification. Whereupon, my friend filed judgment in behalf of his client against the credit card issuer. Case over — but the tables were turned. Some business organizations, it seems, are simply not equipped to respond quickly, even when the requirements are quite simple.

Here’s something else you might not know about this kind of case. When the credit card issuer sells delinquent accounts in bulk to a third party, who then tries to collect them, the odds that the new plaintiff will be able to prove its case in court are greatly reduced.  This is because card issuers usually give only fragmentary documentation to the assignee. But if you don’t respond to the complaint, you will never have the chance to make them try to prove the case against you.

CLT

PS.  Even if a default judgment is filed, your lawyer might be able to open it if you both move very quickly.  But that’s another story.

In Pennsylvania, the crime of Identity Theft is defined by statute. “A person commits the offense of identity theft of another person if he possesses or uses, through any means, identifying information of another person without the consent of that other person to further any unlawful purpose.”

Each time the identifying information is used, a separate offense is committed. However, the total values involved in the separate offenses, pursuant to one scheme or course of conduct, may be aggregated in determining the grade of the offense.

The value of the property involved determines the grade of the offense. When the total value is less than $2,000, the offense is a misdemeanor of the first degree. But if the value exceeds $2,000 or is committed in furtherance of a criminal conspiracy, the offense is a felony of the third degree. A third offense, regardless of the amount involved, is a felony of the second degree.

If the offense is committed against a person who is age 60 or older or is a care-dependent person, the grade of the offense is increased one grade.

The document or information need not be stolen. If a drivers licence is lost and then used by one someone who found it, the use is presumed to be without consent, and thus, identity theft.

The most effective way for a consumer to protect against unauthorized information being used to open credit cards is to institute a security freeze. Pennsylvania law requires the three credit reporting agencies (Trans Union, Experian and Equifax) to freeze access to your credit card files if you give them written instructions and pay a $10.00 fee. This means that even if a potential identity theif has your personal information, he can’t use it to obtain a credit card because the card issuer won’t be able to check your credit unless you “un-freeze” the account. Instructions on where to contact the credit reporting agencies can be found here

CLT

It has become a common practice for credit card issuers to sell their written-off accounts in bulk at auction. However, other kinds of consumer accounts, such as automobile loans and unpaid balances on cellular telephone are also sold in this way. Long lists of delinquent accounts are assigned and frequently re-assigned. Although the gross amount of the bid for a package of written-off accounts may be millions of dollars, this typically represents pennies on the dollar. An individual account may be repackaged and sold two or three times. The buyers of these accounts, called “scavenger collectors”, know that most are uncollectable, but they expect to recover enough by vigorous collection efforts or in court to make the enterprise very profitable.

If you are contacted by someone attempting to collect such a debt, there are a few things that you, the consumer, need to know. First, the caller may not actually represent the legal owner of the claim against you. (For example, it may have already been re-sold to someone else.) Second, the claim may not be enforceable in court. Third, the caller may not know very much about the claim and may be eager for you to provide information.

Refuse to give or confirm any information to the caller. Don’t admit that you owe the debt. And by all means, don’t agree to make a “good faith payment”, even for a nominal amount. Instead, get the exact name and address of the entity making the claim.

If a scavenger collector sues you in court, call an attorney immediately. The chances are very good that the claimant cannot prove its case. They typically have only basic information concerning the debt and no supporting documents. As a practical matter, they usually can’t prove the case. They may even know that the statute of limitations (generally 4 years following the last payment in such a case) has expired. There may be other complete or partial defenses.

Bear in mind, that even if you do owe an unpaid debt, the calculation of the actual amount currently due may be incorrect. The plaintiff has the obligation to present sufficient evidence to prove that the balance is stated correctly. This is no small feat, since the balance was recalculated every month, taking into account payments and the accrual of interest, late charges and other fees. Interst rates and other fees often change from month to month. As a practical matter, if the defendant demands strict proof of the calculation of the account balance, the plaintiff must produce monthly statements of the account since the time when there was a zero balance.

CLT