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    Bankruptcy and Debt, Credit and Small Claims

    Asked Sep 10, 2014, 08:10 PM ó 18 Answers
    I just got a summon on 8/26/14 for a cc debt that I have from bank of America. The plaintiff is portfolio recovery associates, llc vs me[removed for safety],(me) for >5000. I have these questions and was wondering what is the best way to respond.
    1.this is an action for damages for more than $5,000
    2. defendant obtained and used FIA CARD SERVICES, N.A./ BANK OF AMERICA, N.A./ FIA CARD SERVICES, N.A./ BOA/************* Revolving credit account, ************,(the account).
    3. plaintiff is the successor in interest of said account having purchased said account in good faith, for value, and in the ordinary course of business.(see exhibit A)
    4.Defendant did make purchases and charged same to the account, but after statements were provided to defendant, defendant failed to make the monthly payments due upon the account and failed to object to the balance then owing, resulting in an account stated in the sum of $5,675.54 (see attached)
    5. Plaintiff has declared defendant to be in default and demands payment of the balance due on the account. Defendant has refused said demand.
    6. Defendant is indebted to plaintiff in the sum of $5,675.54.
    7. All conditions precendent to this action have occurred
    8. Pursuant to Rule 2.516 plaintiff designates the following email addresses for the purpose of service of all documents required to be served to rule 2.516 in this proceeding. Primary email addresses: [removed]
    Wherefore, plaintiff demands judgement againest defendant for $5,675.54 plus costs.


    How should I respond to this? Any help is much appreciated. Summons is do soon. Thank you all for the help

    Last edited by Cat1864; Sep 10, 2014 at 08:23 PM. Reason: removed contact information for op and others
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    18 Answers
    Fr_Chuck's Avatar
    Fr_Chuck Posts: 81,091, Reputation: 7680
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    #2

    Sep 10, 2014, 08:46 PM


    Is this all true?

    Can you prove payments were made?

    Can you prove this is not your debt?

    Do you intend to go to court and fight ?
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    ScottGem's Avatar
    ScottGem Posts: 64,970, Reputation: 6055
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    #3

    Sep 11, 2014, 04:52 AM


    You respond by sending the court a statement of your Intent to Defend requesting a hearing. Send a copy to the plaintiff asking for proof of the debt and their ownership of it.

    But assuming that this is your debt and they can prove it, you may be better off trying to negotiate a settlement. They probably purchased the debt for pennies on the dollar so they may be willing to settle for a smaller amount if you can pay a lump sum. Or they may be willing to set up a payment plan.
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    AK lawyer's Avatar
    AK lawyer Posts: 12,592, Reputation: 977
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    #4

    Sep 11, 2014, 09:37 AM
    While the title of this thread contains the word "bankruptcy", and it is in the "Bankruptcy and Debt" Forum, it appears to have nothing to do with bankruptcy (an option OP might consider, although probably not advised if some $5,000 is OP's only debt).
    It would appear that OP should answer the complaint by admitting each paragraph and perhaps alleging any affirmative defense(s) he may have (such as statute of limitations, if applicable). As has been suggested, it would probably be best to negotiate this.
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    willpanter's Avatar
    willpanter Posts: 8, Reputation: 1
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    #5

    Sep 11, 2014, 10:11 AM
    Quote Originally Posted by Fr_Chuck View Post
    Is this all true?
    Yes, I do owe the debt

    Can you prove payments were made?
    I made some payment but nothing substantial.

    Can you prove this is not your debt?
    No

    Do you intend to go to court and fight ?
    Yes, I intend to fight and was going to ask them to make sure they have the original documents that I signed, if not doesn't it get dismissed?
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    AK lawyer's Avatar
    AK lawyer Posts: 12,592, Reputation: 977
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    #6

    Sep 11, 2014, 10:28 AM
    ... I intend to fight and was going to ask them to make sure they have the original documents that I signed, if not doesn't it get dismissed?
    No, if they can prove that you signed the document, that is generally all they need to do. If they only have a photocopy, that's fine. If they don't have any copy, the statute of frauds (for your state; SOFs vary from jurisdiction to jurisdiction) may come into play, unless they can prove that you signed something.
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    ScottGem's Avatar
    ScottGem Posts: 64,970, Reputation: 6055
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    #7

    Sep 11, 2014, 10:46 AM


    No, Having a copy of the original documents is not an absolute requirement. Such documents may have been lost or misplaced long ago. All they need is a some verification that you used the card. If they can show charge slips with your signature, or payments made from your checking account, that will be sufficient enough for the court.

    Many people have dodged this bullet because the plaintiff expects the defendant to hide and not show in court so they can obtain a default judgment. So they may go into court unprepared. But its not the norm. The greater likelihood is that they will have sufficient documentation (you can ask that they provide you with that proof when you submit your Intent to Defend, though often they won't) and the court will rule in their favor.

    Can we ask why you defaulted on this?
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    willpanter's Avatar
    willpanter Posts: 8, Reputation: 1
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    #8

    Sep 11, 2014, 12:31 PM
    Quote Originally Posted by ScottGem View Post
    No, Having a copy of the original documents is not an absolute requirement. Such documents may have been lost or misplaced long ago. All they need is a some verification that you used the card. If they can show charge slips with your signature, or payments made from your checking account, that will be sufficient enough for the court.

    Many people have dodged this bullet because the plaintiff expects the defendant to hide and not show in court so they can obtain a default judgment. So they may go into court unprepared. But its not the norm. The greater likelihood is that they will have sufficient documentation (you can ask that they provide you with that proof when you submit your Intent to Defend, though often they won't) and the court will rule in their favor.

    Can we ask why you defaulted on this?
    Yes, I ended up losing my job and haven't worked in almost a year. I'm currently going back to school to try and further my education and then once I have my career I could pay if the court deem that.
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    willpanter's Avatar
    willpanter Posts: 8, Reputation: 1
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    #9

    Sep 11, 2014, 01:15 PM
    Would this be a correct way to respond to the summons? Or do I need more Please advise and thank you everyone for the help means a lot, it truly does.

    IN THE COUNTY COURT IN AND FOR xxxxxxxxxxxxxx COUNTY,FL

    Case No. xxxxxxxxxxxxxxxxxx

    PORTxxxxxxxxxxxxxxxxxxxxxxxxxx
    Plaintiff,
    Vs.
    WILLxxxxxxxxxxxxxxxxxxxx,
    Defendant(s)

    DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT
    Notice of Intent to Defend

    I cannot officially respond to your claim until validation is made for the alleged debt. I am officially requesting validation of your claim.
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    ScottGem's Avatar
    ScottGem Posts: 64,970, Reputation: 6055
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    #10

    Sep 11, 2014, 01:35 PM
    Works for me.

    I edited your post to remove identifying info. You should not post such info online.
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    willpanter's Avatar
    willpanter Posts: 8, Reputation: 1
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    #11

    Sep 11, 2014, 05:05 PM
    Quote Originally Posted by ScottGem View Post
    Works for me.

    I edited your post to remove identifying info. You should not post such info online.
    Thanks scott appreciate the advice and for looking out..
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    AK lawyer's Avatar
    AK lawyer Posts: 12,592, Reputation: 977
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    #12

    Sep 12, 2014, 07:58 AM
    ... once I have my car
    eer I could pay if the court deem that.
    That's not something that the court will take into account. If you owe it, the court will enter a judgment against you. How and when you satisfy that judgment will be your problem, not the court's.
    DEFENDANTíS ANSWER TO PLAINTIFF'S COMPLAINT
    Notice of Intent to Defend

    ..." I cannot officially respond to your claim until validation is made for the alleged debt. I am officially requesting validation of your claim. "
    Although language like that is sometimes used, you must respond. I would answer each paragraph of the complaint, either denying (if you actually believe that such paragraph is false; admitting; or writing "denied for lack of information necessary to form a belief".

    You have a duty to be truthful. If, for example, you know that an allegation is correct, it would be dishonest and wrong to deny it.
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    willpanter's Avatar
    willpanter Posts: 8, Reputation: 1
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    #13

    Sep 12, 2014, 08:44 PM
    Quote Originally Posted by AK lawyer View Post
    ... once I have my car

    That's not something that the court will take into account. If you owe it, the court will enter a judgment against you. How and when you satisfy that judgment will be your problem, not the court's.
    DEFENDANTíS ANSWER TO PLAINTIFF'S COMPLAINT
    Notice of Intent to Defend



    Although language like that is sometimes used, you must respond. I would answer each paragraph of the complaint, either denying (if you actually believe that such paragraph is false; admitting; or writing "".

    You have a duty to be truthful. If, for example, you know that an allegation is correct, it would be dishonest and wrong to deny it.
    But if I wait and tell them denied for lack of information necessary to form a belief. I can still later settle if they have the paper work correct?
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    Fr_Chuck's Avatar
    Fr_Chuck Posts: 81,091, Reputation: 7680
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    #14

    Sep 13, 2014, 01:55 AM
    Once they get a judgement, they have the ability to garnish your pay, and attach your bank account. After a judgement, seldom will they do any settlement, merely wait till they get their money from you.

    But, if you could not pay before, and can not pay now, there is really not a lot you can do. No the judge will not care, if you are not working, the judge will not even ask much about what you have paid. It is just a issue, do you owe it, or not, and if you owe it, then the other side wins.

    But, the judgement only allows them to use legal means to try and get money, not much else.
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    AK lawyer's Avatar
    AK lawyer Posts: 12,592, Reputation: 977
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    #15

    Sep 15, 2014, 09:51 AM
    Quote Originally Posted by willpanter View Post
    But if I wait and tell them denied for lack of information necessary to form a belief. I can still later settle if they have the paper work correct?
    They would have to prove their allegations at trial.
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    willpanter's Avatar
    willpanter Posts: 8, Reputation: 1
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    #16

    Sep 16, 2014, 02:01 PM
    Ak lawyer. I submitted my answers, but my question is like you said they have to prove the allegations. If they don't have the original paper work or cant prove there clain I can get it dismissed without prejudice. I requested it with a notice of discovery,( hope that was right).
    Thanks again everyone for the help and answers
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    AK lawyer's Avatar
    AK lawyer Posts: 12,592, Reputation: 977
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    #17

    Sep 16, 2014, 02:30 PM
    Quote Originally Posted by willpanter View Post
    Ak lawyer. I submitted my answers, but my question is like you said they have to prove the allegations. If they don't have the original paper work or cant prove there clain I can get it dismissed without prejudice....
    Yes, but if they cannot prove their claim at trial, you want to have it dismissed with prejudice. That way, they wouldn't be able to sue you again.
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    willpanter's Avatar
    willpanter Posts: 8, Reputation: 1
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    #18

    Sep 17, 2014, 02:32 PM
    Thanks ak. I put that in my answers to the questions. I prayed that the court dismiss the amount without prejudice and the attorney fee's or anything else they are asking for.
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    AK lawyer's Avatar
    AK lawyer Posts: 12,592, Reputation: 977
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    #19

    Sep 18, 2014, 08:06 AM
    ...
    I prayed that the court dismiss the amount without prejudice ...
    With or without? I'm not sure you are seeing that there is an important difference.
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