Wife being sued for debt not hers

[SHARJIL ALI]

Jurisdiction

Texas

Hello,

My father in law recently gave us some letters that arrived at his house, these were lawyer ads. This brought to our attention that there is a lawsuit against my wife from a company called Portfolio Recovery. The lawsuit is under her maiden name, one she has not used for almost 5 yrs. The address listed for her in the lawsuit is her parents home, one she has not resided in for almost 5 yrs. We've had two additional addresses since.

Anyways, so I went on the local justice of peace website and did a case search by her maiden name, I see serve papers as well as the original petition and some other documents. (Sorry, I'm not too versed in law so don't know what the other documents are).

The facts of the petitions state that my wife opened a credit account with 'XYZ bank' in January 2014. That in it self is not true, my wife never opened an account with this bank. It then states she used the account and continued to make payments and the last payment was January 2015 (again, we would both be aware if we were making payments for a whole year). It then states the bank sold the debt to the plantiff and the plantiff tried to collect (again, we never we're contacted about this, no letters or anything, even at my wife's previous residence).

We both clearly know the debt is not hers. We looked through all 3 credit reports (luckily we can get it once a year) and neither of the reports show she ever had an open or closed account with ''XYZ bank'.

I think Portfolio Associates has the wrong person.

What would you guys recommend?

Do I need to reach out to the court? We haven't been officially served.

Do I reach out to the company suing her?

Do I reach out to 'XYZ bank'?

Can we do a countersuit?

Thanks

 

[zddoodah]

What would you guys recommend?

Do I need to reach out to the court? We haven't been officially served.

Do I reach out to the company suing her?

Do I reach out to 'XYZ bank'?

Your wife -- not you -- can contact the lawyer representing the plaintiff in the lawsuit.

On the other hand, it's not clear that she's been served with anything. Has your wife contacted her parents to see if anything was sent to their address for her?

Can we do a countersuit?

A countersuit against whom and for what?

 

[mightymoose]

In all likelihood this is a debt of hers. The creditor listed in the court papers may not be the original creditor. When the account goes delinquent ownership can change several times. This is why you may not recognize the bank name.
She will need to demand the original creditor information and any kind of signature they have linking her to the account.
Service at the old address may have been appropriate at the time it was done. It may have been the only address they had on record.
She will have to do some investigating, but be prepared to accept that it likely is an account she thought she had escaped. They don't go away that easily.

 

[mightymoose]

What would you guys recommend

Have her check her credit reports for any delinquent account. It should become obvious rather quickly what this is all about.

If she recognizes the debt the easiest way to resolve it is to contact the current creditor and negotiate a settlement. In negotiating this try to obtain an agreement to update the credit report with a more positive rating- in writing.

If she still does not recognize the delinquent account she can dispute it with the credit agency. They will investigate and attempt to confirm if it belongs to her. Don't dispute it if it is valid. You will cause problems for yourself.

If she insists it is not her account after doing all of this follow up with a police report for identity theft. Do not make this report if she knows it is her debt- she may commit a few crimes in doing so. Once the identity theft report is made and the accounts disputed with the credit agency, notify the current creditor of these actions and demand that they stop reporting the fraudulent account on her credit report. If the credit agency insists it is her debt and wants to pursue her they have ways to do so. They will ultimately have to provide evidence in court that your wife owes the debt.

Again- payments were apparently made on the debt and they will be able to show the source of those payments. If it is her debt it will be easy for them to prove.

 

[SHARJIL ALI]

In all likelihood this is a debt of hers. The creditor listed in the court papers may not be the original creditor. When the account goes delinquent ownership can change several times. This is why you may not recognize the bank name.
She will need to demand the original creditor information and any kind of signature they have linking her to the account.
Service at the old address may have been appropriate at the time it was done. It may have been the only address they had on record.
She will have to do some investigating, but be prepared to accept that it likely is an account she thought she had escaped. They don't go away that easily.

We're like 99.99% positive the debt is not hers. The reason being, they stated she opened the account with the said bank in January 2014. At that time, she only had 2 cards in her name and nothing else.
Another reason we know is it stated she continued to make payments on it. I think we would remember making payments from our bank to the alleged account.

On top of that, her credit score is in excellent standing and we checked all 3 reports, nothing negative listed nor is there anything related to the so called bank the petition states she opened an account with.

 

[SHARJIL ALI]

Have her check her credit reports for any delinquent account. It should become obvious rather quickly what this is all about.

If she recognizes the debt the easiest way to resolve it is to contact the current creditor and negotiate a settlement. In negotiating this try to obtain an agreement to update the credit report with a more positive rating- in writing.

If she still does not recognize the delinquent account she can dispute it with the credit agency. They will investigate and attempt to confirm if it belongs to her. Don't dispute it if it is valid. You will cause problems for yourself.

If she insists it is not her account after doing all of this follow up with a police report for identity theft. Do not make this report if she knows it is her debt- she may commit a few crimes in doing so. Once the identity theft report is made and the accounts disputed with the credit agency, notify the current creditor of these actions and demand that they stop reporting the fraudulent account on her credit report. If the credit agency insists it is her debt and wants to pursue her they have ways to do so. They will ultimately have to provide evidence in court that your wife owes the debt.

Again- payments were apparently made on the debt and they will be able to show the source of those payments. If it is her debt it will be easy for them to prove.

We checked her credit reports, they are in excellent standing. No mention of a delinquent account or a force closed account. Her scores are high close to 800. So I don't even know it is identity theft. She does have a common first name and maiden name within the southasian community in the city we reside.

 

[SHARJIL ALI]

A countersuit against whom and for what?

A countersuit against the plantiff if indeed they have the wrong person for causing us emotional distress and worry throughout this process. Also to cover the cost of our lawyer fees if we get an attorney.

 

[mightymoose]

If it is not showing on credit reports and she has not been served with any legal papers compelling her to appear in court, then the best option might be too do nothing.

It could be a scam... There are plenty of scammers out there these days happy to separate suckers from their money.

Forget a countersuit. You would get nowhere. If it ever did find it's way in to court you could ask to be compensated for reasonable costs. It sounds like maybe that is a long way off.

I find it very suspicious that her credit is clear even though you found documents on file with the court. Are you certain the court website you used is legitimate? Hopefully it isn't one that was listed on the papers you got in the mail.

Anyway- it seems she is in a position that requires no action at all. Based on what you've said here, if it was me I would do nothing at this point.

 

[SHARJIL ALI]

If it is not showing on credit reports and she has not been served with any legal papers compelling her to appear in court, then the best option might be too do nothing.

It could be a scam... There are plenty of scammers out there these days happy to separate suckers from their money.

Forget a countersuit. You would get nowhere. If it ever did find it's way in to court you could ask to be compensated for reasonable costs. It sounds like maybe that is a long way off.

I find it very suspicious that her credit is clear even though you found documents on file with the court. Are you certain the court website you used is legitimate? Hopefully it isn't one that was listed on the papers you got in the mail.

Anyway- it seems she is in a position that requires no action at all. Based on what you've said here, if it was me I would do nothing at this point.

I'm certain the website is real. It's a .gov site and I found it by using Google search to find the "County Name" Justice of Peace and the Precinct #. I was thinking of doing the same, there is no official serve documents given to us via in person or certified mail. From what I understand of Texas laws, those are the only two official ways to serve a defendant for civil cases. I'm starting to think it maybe the credit collection agency does not have full identification on the person and just someone with a similar name. They probably found her old address cause her car is owned by her and her father. The registration was under her father's name and her maiden name. Maybe that's how they found the address? Not so sure.

Thanks for the advise mightymoose. We're thinking of currently not doing anything and just keeping an eye on the county site and see if the petition ever officially gets marked as served. It seems the officer serving is supposed to sign something once they serve and return to the courts.

I may contact a local attorney just to do an initial consultation.

 

[army judge]

We're like 99.99% positive the debt is not hers. The reason being, they stated she opened the account with the said bank in January 2014. At that time, she only had 2 cards in her name and nothing else.

It MIGHT be a case of someone assuming her identity ILLEGALLY.

She needs to know the details of how the account was opened, when, what proof of identity was required to open the account, etc...

In many of these identity theft issues the rat who misappropriated another's identity is often someone CLOSE to the victim.

 

[zddoodah]

A countersuit against the plantiff if indeed they have the wrong person for causing us emotional distress and worry throughout this process. Also to cover the cost of our lawyer fees if we get an attorney.

No. As far as lawyer fees, if this is an action for breach of contract and the contract provides that the prevailing party may recover his/her/its attorneys' fees, then, when the case is over, whichever side wins can file a motion to have his/her/its attorneys' fees added as part of the judgment. As for the rest of this, it is not inconceivable (although it is unlikely) that your wife could have a claim against the plaintiff for malicious prosecution. That cannot be pursued as a counterclaim; it would have to be a separate lawsuit that cannot be filed until after a disposition on the merits of the case against your wife. Note that a mere case of mistaken identity would not give rise to a malicious prosecution case.

 

[mightymoose]

It MIGHT be a case of someone assuming her identity ILLEGALLY.

That doesn't seem to be the case since there is no entry in her credit report. It may very well be a mix up of a common name.

 

[SHARJIL ALI]

That doesn't seem to be the case since there is no entry in her credit report. It may very well be a mix up of a common name.

This is what I believe it to be. If my wife is to get served. We have to respond. Any idea what we should do?

I know a lot of folks will say to her ab attorney and that option is open, however it's so unfair we have to pay for lawyer fees when it's not our debt.

 

[army judge]

Any idea what we should do?

Okay, YOu or yoru wife must get busy TONIGHT.

Each day you do nothing is one more day for the debt scavenger to harass, bully, intimidate, and potentially SCAM you!

You are BURNING daylight, mate, get to getting things done.

This is what most people do to dispute a debt and attempt to discover what is behind the allegations.

Your FDCPA dispute rights are a powerful tool. Once you dispute the debt, the debt collector must stop all debt collection activities until it provides you with proof that you actually owe the debt. If the debt collector can't provide you with that proof, it will never bother you again. If the debt collector does provide proof of the debt, you will be in a better position to decide what to do about it.

What are the most important things to know about my right to dispute the debt?

Under the FDCPA, your right to dispute the debt has three separate components:

Right to notice of the debt
Right to contest the debt
Right to verify the debt
There are time limits on some of these rights, so it is important to stay alert.

Know Your Rights!

RIGHT TO DISPUTE THE DEBT: Within 30 DAYS of receiving notice of the debt from the debt collector, you can send a letter to the debt collector disputing the debt and requesting the name and contact information of the original creditor. The debt collector must stop all debt collection activities until it can "verify" the debt.

RIGHT TO VERIFY THE DEBT: A debt collector verifies the debt by giving you enough information about the debt so that you can tell whether you actually owe it. The type of information that must be provided changes depending on your specific circumstances.

In most cases, verification should include, at minimum: the amount of the debt, the date of the debt, and the name and contact information of the original creditor.
If you contest the debt on grounds of identity theft or mistaken identity, verification should include a copy of the original signed contract or note.
If you contest the amount of the debt, verification should include information about payments made, and interest and fees charged and/or waived.

Can I dispute the debt over the telephone?

You can, but the debt collector will be allowed to continue debt collection activities and will not have to verify the debt. If you want to assert your right to verify the debt, you must send a letter.

Can I dispute the debt if more than 30 days have passed since I received notice of the debt from the debt collector?

Yes, but again the debt collector will be allowed to continue debt collection activities and will not have to verify the debt. If you want to assert your right to verify the debt, you must send your dispute letter within 30 days of receiving notice of the debt from the debt collector.

Still, if you have a good defense to the debt, you might want to dispute the debt even though more than 30 days have passed. Dispute in writing, and include any evidence that supports your claims (such as copies of cancelled checks showing you paid the debt or a police report in the case of identity theft). If the debt collector knows that you don't owe the money, it should not try to collect the debt. The FDCPA prohibits debt collectors from making false statements about the character, amount, or legal status of your debt.

What if the debt collector never sent me written notice of the debt?

You can still assert your dispute and verification rights. The 30 day time limit will not apply.

Can a debt collector report a disputed debt to a credit reporting agency?

If you dispute the debt, the debt collector cannot report it to a credit reporting agency unless and until it verifies the debt. If the debt collector has already reported the debt (before it received your dispute letter), it must notify the credit reporting agencies that the debt is disputed. After verifying the debt, the debt collector can report it, but only as a disputed debt.

A debt collector violates the FDCPA and the Fair Credit Reporting Act if it reports a debt that it knows, or should know, to be false.

Should I dispute the debt even if I think I probably owe the money?

Probably. When it comes to the amount that you owe, and the creditor to whom you owe it, why trust the word of the debt collector? The debt collector could be lying, or it could have bad information. The dispute and verification process is designed to provide you with accurate information about your debt, so that you have the information you need to decide what to do about it. There is no reason to give money to a debt collector who cannot or will not provide you with this information.

What happens if I don't dispute the debt?

Don't worry. Although you will lose your right to verify the debt, you can still stop the debt collector from contacting you by sending the debt collector a letter, called a "cease letter." A sample cease letter is available here.

Know Your Rights!

If you are sued by a creditor or debt collector, failure to dispute the debt cannot be used against you in court.

How to Dispute a Collection Account

How to Dispute a Debt with a Collections Agency | SmithMarco

Your Rights Under the FDCPA: Disputing the Debt - New Economy Project