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How to respond to summons?
Asked Jan 5, 2008, 05:01 PM
This morning a received a sommons:
"A lawsuit has been filed against you...by LVNV Funding LLC, Assignee of GE Capital, Plaintiff...you must respond...stating defense in writing within 20 days...or a Default Judgement may be entered against you...If you serve a Notice of Appearance on the undersigned attorneys you are entitled to notice before a Default Judgement...
The debt is for $945...I have no idea what for. It lists my husband (we live in WA) as "John Doe" so I am guessing it is from before we were married nearly 8 years ago, so the SOL may have run out.
1. I really don't want this to go to court. We live in a very small community and my mother would be mortified. If I submit an Intent to Defend will it end up in court.
2. I know I need to get a verification of the debt (since I have know idea what it is) but is there a way to do that without restarting the SOL?
I can't pay this in full right now. Maybe after tax return. But I have seen mention elsewhere on this forum you can propose to pay, say, 50 cents on the dollar. Since this is (I think) an old debt and I've never heard of either agency listed as the plaintiff it must have been sold a few times...is this something I should look into?
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Jan 5, 2008, 05:35 PM
If you don't look into this you will have a judgment against you for that amount PLUS court costs AND attorney's fees to add insult to injury. You must answer this summons and complaint period. You may do this yourself if you don't want to involve an attorney (bad idea not to involve an attorney by the way). The magic phrases to use when you reply or "answer" are as follows:
1. Denied. Strict proof demanded thereof. 2. Denied. Strict proof demanded thereof., etc. On down the line in response to each of the numbered allegations contained in the Complaint. Get the picture? Don't admit anything except your name. Demand a jury trial also by stating. Defendant hereby demands a jury trial on all issues so triable. You send the original to the Court Clerk or go in person with the original and a copy for your files that you get "date stamped" by the Clerk that proves you answered the complaint. Be sure to put at the end of your Answer that you certify that you sent a true and correct copy to attorney so and so at such and such address on the blank day of blank, 2008. Send a copy of what you filed with the Clerk's office to the opposing attorney.
You can always hire an attorney down the road after you have looked into this matter to see just what the debt was for....but for heaven's sake file what they call an "Answer" to this Summons now. Denying all allegations in a complaint stops the other attorney cold in their tracks. It makes them have to regroup and not be able to set it down for a "default hearing" in a week or so after the 20 days run out. The 20 days is from the date the attorney files the suit so I would look at the document and see what date he used. By filing the answer this literally stops the 20 days time period and gives you a few extra days to attorney shop and find out just what's behind the suit. My guess from the "style of the case" the debt was from GE Capital. Probably some credit card that only has an actual balance due of probably $500 but they have continued to jack up the amount adding in late fees, collection fees, knick knack and doo dad fees, etc and now it's close to $1,000. Credit card companies are getting desperate to collect off really old debts now.
Don't just pay them and think they'll go away. Fight them. No one sees what happens at the Court House so don't worry about Mother freaking out. I have defended myself on many lawsuits in the past as I was a paralegal. It sounds complicated but if you want to do it yourself you can. The nice ladies at the Clerk's office will help you if you ask them to, but they cannot give legal advice to you. You can look online and see what I'm talking about in reference to Summons, Complaint, Answers to Complaint, etc. It's not that difficult to do if you take some time. Ask yourself which is better - pay the debt without a fight or fight it and possibly win and not have to pay right away (or at all).
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Jan 5, 2008, 06:53 PM
YOu put way to much worry into what you mother will or won't think.
This may not be a valid debt, some people with similar names are just sued hopeing to get money, you were told how to respond, but in general respend that you will defend and that you are requiring them to prove the debt is valid and that if valid within the SOL.
Then in court show up, ( no one is there but you, the judge and most times they don't even show up, they are just hopeing for a default judgement which happens 80 percent of the time.
You show up and require them to prove their case, if they even show up, most times they can't prove the case, they don't bring any real documents with them.
Worst thing that can happen is they win and you have to write them a check when it is over.
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Jan 5, 2008, 09:53 PM
1. It is in court, already. You need to file an answer. If it is small claims court, go see the clerk and ask for help. If it is a court of general jurisdiction, you should talk with a lawyer.
2. Get a copy of your credit report, and have your husband get his. I believe there are three national firms that report credit; the report is free from each of them.
But file your answer before the 20th day. You can call the attorney representing the plaintiff and offer 50%, cash, immediately. Otherwise, ask for terms. But file your answer.
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Jan 6, 2008, 08:14 PM
Thanks for the help from everyone thus far.
So, I understand that I must respond to this in the 30 days.
Should I seek a lawyer right away, or will I be okay to follow this information (from my state) and then get one if necessary? http://www.washingtonlawhelp.org/doc...ateabbrev=/WA/
I have noticed that there is no "No. ________" on the Summons, which means it was served before being filed with the court. Will they wait to serve this and see if I respond right away? (Not that it matters, I will still respond.)
If I do seek the help of an attorney, how much will that cost? Since I am being sued can I get one for free or cheap? Is a free/cheap lawyer worth it? Do I need to find one that specializes in consumer law or something? I live in a rural community so my options are limited.
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Jan 6, 2008, 08:36 PM
You have TWENTY DAYS not 30 days! Also if there is no case number that's what the "No.______" part means it means that somehow they mailed it to you without getting a case number (not uncommon). The case has been filed in court and you can either call up the clerk and ask her what the case number is, giving her the "style" of the case (the them versus you stuff on the papers) or when you file your answer in person get the case number and write it on your answer at that time. Whatever you do, include that case number so your paperwork gets properly filed at the courthouse.
Seeking an attorney is never cheap and as far as I know there are no "free" attorneys out there or anywhere for that matter. And no, you don't need a consumer law attorney as this is just a simple case that any "general practice attorney" could handle. Also, if you are in a rural area most probably all the attorneys practicing in your area are of the general variety out of necessity.
If you answer the complaint right away and demand strict proof of just how you owe this debt you should be okay for quite sometime. Remember anybody can sue anybody but the party suing you has to prove their case with documents. Like the one reply above stated that most of these charlatans (oops attorneys) file suits against any and anybody in hopes that someone will just pay them whatever money is demanded or better yet, don't show up at the hearings and get a Default Judgment against them. You sound like you're pretty intelligent and can follow the program and file your answer and get some breathing time for yourself.
I wouldn't contact the other attorney via phone either as they probably have a "boiler room" operation and file literally hundreds of cases every week. The best way is to mail them a copy of your answer to their complaint and see what happens next.
Get your credit reports (good idea) and see just what, if anything, is outstanding that you've overlooked paying. Remember they are the ones who have to prove you owe this debt and if they cannot come up with the documents to prove otherwise, the judge will dismiss the case and you don't pay dime one for anything. You will be able to demand copies of these documents after you answer the complaint. That would be your next step after you answer the complaint. It's called "Demand for Discovery".
You CAN contact an attorney and ask for a free consultation. Some attorneys actually will give you a free consultation and discuss with you your options on what to do. Some may charge a $50 per hour consultation fee. It would be money well spent for you if you would have to pay the $50 as you could ask the attorney any question you wish about your case in that hour. Be sure you ask ahead of time how much the consultation fee is and for how long. You don't have to retain the attorney right then and there if you want to go home and think it over. He should be able to give you his price for handling the case right then and there and you decide on your own. Ask him if this is the entire price for the case or does his fee go up if there is a court appearance involved, then what is the price.
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Jan 7, 2008, 04:07 AM
Sample of a defense answer, if it fix your problem.
Defendant ME, answering the Complaint of the Plaintiff, asserts:
1. In response to paragraph #1, the Defendant lacks sufficient knowledge to admit or deny the allegations.
2. In response to paragraph #2, the Defendant admits.
3. In response to paragraph #3, Defendant lacks sufficient knowledge to admit or deny the allegations of paragraph 3 of the Complaint and on that basis denies the allegations therein.
As and for a First Defense,
1. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.
As and for a Second Defense,
2. Plaintiff has unclean hands as Plaintiff admits to purchasing the defaulted debt allegedly owed by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.
As and for a Third Defense,
3. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.
As and for a Fourth Defense,
4. Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the Plaintiff and the Defendant.
As and for a Fifth Defense,
5. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.
As and for a Sixth Defense,
6. Plaintiff is not authorized or licensed to advertise or solicit, either in print, by letter, in person or otherwise the right to collect or receive payment of a claim for another, nor to seek to make collection or obtain payment of a claim on behalf of another. The Complaint fails to allege any exception or exemption to these requirements.
As and for a Seventh Defense,
7. Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.
As and for an Eighth Defense,
8. Defendant states that Plaintiff’s claim is precluded as Plaintiff failed to follow validation procedures as required by FDCPA 15 U.S.C § 1692g, which include, but are not limited to, obtaining and providing validation of the alleged debt from the original creditor.
As and for a Ninth Defense,
9. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.
Statement of Facts
1. Defendant had no knowledge that MRC Receivables Corporation owned above alleged debt.
2. Defendant was under the impression from credit report that Midland Credit Management owned above alleged debt.
3. Defendant had no knowledge that MRC Receivables Corporation and Midland Credit Management are the same company.
4. Defendant sent letter to Midland Credit Management aka MRC Receivables Corporation on February 26, 2007, by way of certified mail; disputing and requesting complete validation of alleged debt.
5. Said letter was returned because the address that appears on Defendants credit report for Plaintiff is incorrect.
6.Defendant had to search the Internet to obtain correct mailing information for Plaintiff.
7. Defendant sent a letter to Lustig, Glaser & Wilson P.C. On February 26, 2007, by way of certified mail, disputing and requesting complete validation of alleged debt.
8. Said letter was received by Plaintiff on February 27, 2007, and signed for by Ed Gordon, agent of said Plaintiff.
9. Defendant sent another letter to Midland Credit Management aka MRC Receivables Corporation on March 27, 2007, by way of certified mail; disputing and requesting complete validation of alleged debt.
10. Plaintiff received said validation letter on March 29, 2007, and signed for by D. Petiotto, agent for the Plaintiff.
11. A complaint and summons was filed and issued on March 21, 2007 with an attached complaint dated March 20, 2007.
12. Up until the date of this filing, no validation was received from MRC Receivables Corporation aka Midland Credit Management or their attorney, yet through their attorney, continued to collect on alleged debt.
13. On March 30, 2007, Defendant was served with the summons and complaint.
Statement of Claim
11. In the course of its action, Plaintiff willfully and/or negligently violated provisions of the Fair Debt Collection Practices Act in the following respect:
(a) by failing to cease collection of an alleged debt after the Defendant notified Plaintiff in writing that the alleged debt was disputed, therefore violating 15 USC 1692g(b).
(b) The failure to communicate that a disputed debt is disputed, therefore violating 15 USC 1692e(8).
(c) The use of any business, company, or organization name other than the true name of the debt collector's business, company, or organization, therefore violating 15 USC 1692e(14).
WHEREFORE the defendant prays the court as follows:
1. That the Plaintiff have and recover nothing of it in this action and that
The Plaintiff’s action be dismissed as to it;
2. That the Court grants injunctive relief enjoining plaintiff from selling, transferring, reporting or otherwise assigning the alleged account to any other collection agency, debt collector, debt buyer or credit reporting agency.
3. That the Court grants a judgment against plaintiff on the merit of the Counterclaim in the sum of two thousand dollars ($2,000.00).
4. That the Court grants have and recover all cost of defending against this suit and interposing Counterclaim, including but not limited to attorneys’ fees, filing fees, witness costs and postage.
4. That the Court grants to defendant such other and further relief as to the Court may seem just and proper.
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Jan 7, 2008, 12:41 PM
I just received a call from the lawyer's office. They left a message asking me to call them, but did not identify themselves...I only know it was them by the Caller ID.
Normally, I would no ignore such things, but I feel that to protect myself I just need to answer the summons and not talk to them on the phone and risk saying something stupid. Am I right?
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Computer Expert and Renaissance Man
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Jan 7, 2008, 12:47 PM
Yep, respond only in writing.
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