Suing Collection Agencies (Part II)

As I was about to drop the Complaint and Summons in the mail to the Sheriff for service, a light went off.  NCS’ Registered Agent was listed as Joel Lackey, their CEO.  NCS is headquartered in Atlanta, Georgia, presumably because that is where Lackey lives and he is the only owner of the company.  You may be thinking, “and?” – but I was absolutely thrilled.  Joel Lackey cannot be NCS’ Registered Agent in North Carolina – a company’s registered agent for a state has to live in that state.

I had to check but I was certain there could be a major issue here.  Service would continue to be problematic because their registered agent lives in another state.  So what does one do in that situation? Well, you have to serve the Secretary of State.  Having a registered agent – one that meets the requirements of the state – is the law; without one, a foreign corporation cannot receive a Certificate of Authority to practice business.  And in North Carolina, without a Certificate of Authority, a collection agency cannot obtain the required license to collect debts.  And collecting debts without that license in North Carolina is a Class I Felony.

I sent a letter to their contact at that point advising him that I intended to report them to the State at the time I serve the Secretary of State.  And, I added, I was going to request the state administratively dissolve their Certificate of Authority – retroactively.  It would, in turn, dissolve their collector’s license making their collection activity against me now criminal as well.

I sent the letter to them last Friday.  On Tuesday, I received an email indicating they were sending me a check for my settlement demand by overnight mail.  Case closed.

Incompetent Attorneys

Don’t think that just because they have an “ESQ” behind their name or have passed the bar that they can be relied upon to properly pursue your case.  Last December, I began the dispute process with a particularly obnoxious debt collector.  It didn’t take me long to realize that this was not going to resolve itself – nor would it resolve via letters back and forth.  I drafted a Complaint for filing in my state district court.  Why?  Several reasons:  (1) it costs $200 to file in my state’s district court and over $400 to file in federal court, (2) it is perfectly acceptable to file an FDCPA case in local court and (3) if the defendant is not local, it will not only cost them a lot more in attorney fees, you can let them pay to move the case to federal court.

I have been a paralegal for ten years now – I have written plenty of Complaints.  And while I see nothing wrong with being a pro se litigant, I believe a lawsuit filed by an attorney has more teeth.  SO, I found an attorney who had sued the defendant previously and offered him a very simple case.  The Complaint was filed as is – he didn’t make any changes to it.  Basically, all he had to do was sign it and send it with the appropriate number of copies to the courthouse for filing and service.  Lawsuits typically follow a general path from start to finish, as I have shown in the very basic flow chart here.  NOTE:  It is 30 days to Answer in my state – it may be different in yours.  Also, this is a general lawsuit flowchart – by no means intended to represent the way all lawsuits go.

He filed the lawsuit on January 13.  And over the next two months, I heard about settlements I even accepted one settlement offer.  But by the beginning of this month, I was wondering what the hell was taking so long if I accepted their settlement offer.

I ended up having to do some background research because things weren’t adding up.  And lo and behold I discovered that the lawsuit, while it was filed, had never been served.  Why anyone would file a lawsuit and not have it served is beyond me – but it wasn’t.  And here, you have 90 days to get it served or get a renewed summons, and we were on day 85.

No defendant is going to take a lawsuit never served upon them seriously.  The date they are served is the date the clock begins – they have 30 days from that point to Answer the Complaint.  I am essentially starting over.

Needless to say, the incompetent attorney – he is facing a bar complaint and possible malpractice claim.