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-   -   Being sued by debt collector - how to proceed? (https://www.askmehelpdesk.com/showthread.php?t=301531)

  • Jan 9, 2009, 08:09 PM
    rcdan
    Being sued by debt collector - how to proceed?
    Hi everyone

    I live in Georgia and I was recently (two days ago) served with a court summons from Superior Court to answer to a complaint filed by a debt collector (Arrow Financial Services). I don’t actually know what debt this is. From what I’ve found online, AFS is a debt buyer.

    I'm sorry to beat a dead horse. I know this has been discussed here a hundred times. I've read through a bunch of what’s already been posted and I’m trying to pull it all together. There is so much information that it’s a little overwhelming. I think I've got a basic idea of how to proceed however; I would be VERY appreciative if any of you with more knowledge of the subject could take a look and tell me what you think. Thanks so much in advance.

    Here are the contents of the summons\complaint:

    1. Defendant is a resident of this county
    2. Defendant is subject to the jurisdiction of this Court
    3. Defendant may be properly served with process at [my address]
    4. Venue is proper
    5. Defendant is indebted to Plaintiff under the terms of a written agreement in the principal amount of $7654.09, $124.56 accrued pre-judgment interest, $802.86 attorneys fees, plus all costs of this action.
    6. Plaintiff has made demand upon Defendant for payment and payment refused
    7. This paragraph constitutes written notice, pursuant to O.C.G.A 13-1-11, for the purpose of collecting attorneys' fees, as provided in the underlying written agreement. Defendant has ten (10) days from receipt of this notice to pay the principal and any accrued interest sought herein, in order to avoid liability for attorneys’' fees.

    PRAYER FOR RELIEF

    WHEREFORE, Plaintiff prays for the following relief:
    A. That judgment be entered against Defendant in the principal amount of $7654.09, $12.56 accrued pre-judgment interest as of this date, $802.86 attorneys fees, plus all costs of this action;
    B. Post-Judgment interest upon the principal amount from the date of judgment at the maximum rate allowed by law; and
    C. Such other and further relief as this court deems just and proper.
    __________________________________________________ ___________________

    In regard to number 6, I know it’s not the proper way to handle things but I have completely ignored any and all debt collection attempts from anyone. I don’t answer the phone and I’ve never responded to any mailings. I’m not sure what the legal definition of “payment refused” is but other than no response I have not communicated anything to any debt collectors.

    It makes no reference to who the original creditor is or any type of account number (original or with the collection agency). In this case, I honestly have no idea what the debt is.

    At this point, this is how I think I should proceed

    1. File an answer to the complaint denying debt and state intent to defend (should I deny… or claim no knowledge?)

    2. File motion for discovery requesting debt validation (I've never sent any request for debt validation to anyone. It's my understanding at this point it’s useless and I ask for documents to validate debt through discovery)

    3. Wait for response to discovery motion and a court date.

    Is there any point after I file the motion for discovery but before the court date that I can file a motion to dismiss due to lack of debt validation? I.e. if they don’t provide me with proof of the debt in a certain amount of time after I file the discovery motion?

    4. Appear in court date

    If I didn't receive sufficient proof of debt (debt validation) via discovery, deny debt in court and request proof (original signed contract). If original signed contract cannot be produced, ask for dismissal on grounds of debt not being proven (validated).

    If somehow, a signed contract is produced, cross examine their witness to try and discredit firsthand knowledge. If they have no witness and only the lawyer is present, request dismissal due to inability to cross examine (I believe I read somewhere this is called lack of jurisdiction? ).

    If all that fails... assuming they have documentation and it was not provided to me in discovery, I can ask for a continuance in order to review.

    5. If I lose, file an immediate appeal and try to figure out a way to afford an attorney.

    Additional questions...

    I’ve read many posts on how to respond to the summons. Some indicate answer by denying debt, others simply advise to file notice of intent to defend. Would it be appropriate to combine the two into one answer (i.e. I deny this debt and intend to defend)?

    Also... I read somewhere else that my answer should be a graduated denial:

    “I deny this is my debt and if it is my debt, I deny that it is still a valid debt and if it is a valid debt, I deny the amount sued for is the correct amount.”

    Does that sound appropriate? Instead of denying it’s my debt, should I claim I have no knowledge instead?

    When I file the motion for discovery, do I word it the same as I would a request for debt validation? My understanding is they’re basically the same thing… I just have to file it with the court when doing it through discovery. I’ve come across an "Attorney Debt Collector Disclosure Statement", can that be used for the request for validation/discovery motion?

    If it goes to court... do they have to have the actual original contract I signed or just a copy? I’ve read they must have the original. Assuming that is correct; and they only have a copy, what would be the grounds for a request to dismiss? I would think a copy is still proof I signed a contract.

    Thanks again (in advance) for any help. I really do appreciate it. I am SO sorry for such a long post and so many questions.
  • Jan 11, 2009, 07:06 AM
    ScottGem

    OK, lets deal with your points one by one.

    1) The answer to this should be clear from your readings. Yes you respond with an intent to defend. You don't need to enter the form of your defense, but it would probably be better to state you have no knowledge of this debt.

    2) It should not be necessary to file a "Motion for Discovery". Simply send the plaintiff a copy of your Intetn to defend and request that they provide documentation and verification of the debt.

    3) Yes
    No, the plaintiff can provide verification at the hearing.

    4) Unless there is some question about the validity of the documentation I doubt if you will be able to grill the plaintiff's representative. But you can try. Bottomline is if they produce documentation at the hearing and not before, you can ask for a continuance. But if they have the documentation they will get a judgement.

    5. If you lose, work out a settlement if you can.

    Really, all of your questions are answered in similar threads. The sequenbce goes like this:

    You file your Intent to Defend, In that you state that you are unaware of and therefore deny the validity of the debt and request a court hearing. You then send a copy of that to the plaintiff with a request for verification.

    You then wait for a court date and see if the plaintiff shows up with proof that you entered into a contract and that they have the right to collect on the terms of that contract. Valid proof would be a copy of the original contract with your signature or other such proof that you agreed to this debt. Since we have people applying for debt through online sites, signatures may not have been provided and there will be other means of proof. They also need to produce either proof they purchased the debt or proof they were assigned to collect it.

    If they don't have sufficient proof you ask for a dismissal. If they do, you lose.

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