Being sued by debt collector - how to proceed?
Asked Jan 9, 2009, 07:09 PM
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 donít actually know what debt this is. From what Iíve 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 whatís already been posted and Iím trying to pull it all together. There is so much information that itís 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 attorneysí' 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 itís not the proper way to handle things but I have completely ignored any and all debt collection attempts from anyone. I donít answer the phone and Iíve never responded to any mailings. Iím not sure what the legal definition of ďpayment refusedĒ 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 denyÖ 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 itís 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 donít 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.
Iíve 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:
ďI 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.Ē
Does that sound appropriate? Instead of denying itís 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 theyíre basically the same thingÖ I just have to file it with the court when doing it through discovery. Iíve 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? Iíve 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.