I received a summons a couple of days ago. It say that I have 20 days to respond, but must respond in the form of a counterclaim as provide by Rule 13(a). (Panic!! ) well I have been doing a bit of research and, boy, am I confused, anyway I want to know how I proceed in responding this summons.
Along with all of that I am very confused as to whom the plaintiff really is. Yes, the summons does state that the plaintiff is the original creditor, however, through my reading I thought that if an outside attorney is collecting the debt he is regarded as a third party and a third party is a bebt collector, hence the rules of the FDCPA would apply to him.
So with all of that, who really has the debt? And how do I find that out. What I do know is that several other attorneys (debt collectors) had it before this one. With all of that said, the big question is how do I answer and counterclaim this summmons. (PANICING!! ) I must answer in a counterclaim form as provided by Rule 13 (a)
Please, any help will be highly appreciated!!

Hello lyzz:

Relax... It's only money. The big boys on Wall Street are losing gillions as we speak...

Couple things... You don't need to answer with a counterclaim. You only counterclaim when you want to sue them too. I don't think you want to do that.

Next; Anybody who calls you or mails you stuff or sues you is a collector and is bound by the FDCPA.

Next; The plaintiff IS the firm/person/lawyer who is listed as the plaintiff on the summons. It doesn't matter who owned the debt in the past. THIS plaintiff owns it now.

I'm also not sure why you want to answer. I know, it says to answer... Well, your loan documents told you to pay your bill, and you didn't do that. So, why all of a sudden are you knuckling under?

You only have to answer the suit if you plan to defend it. Do you have a defense? Probably not. So, actually going to court where you're sure to lose is going to cost you MORE money, because YOU'RE paying for the lawyer to sue YOU. I don't think you want to do that.

If you owe it, and you have no defense to the suit, you're best move would be to try to settle. I know, you don't have money... But, consider this; if they win (and they will), they'll get a judgment against you, with which, they can garnish your wages and seize your bank accounts and other property.. So, you don't want that to happen.

You'll be able to negotiate a better deal if you have CASH. The lawyer probably isn't going to be interested in setting up a payment plan. Why should he? You already HAD a payment plan that you defaulted on, and he doesn't have to take your word for anything. He can just GET his judgment and then TAKE whatever he wants from you.

Therefore, borrow CASH, call him up, and negotiate a good deal for yourself. When it's done, finalize it in writing, sent certified, return receipt requested.

excon

As noted the plaintiff is the one listed on the summons as the plaintiff. Nothing else matters. I'm not sure what this Rule 13(a) you refer to is. Where did you get that?

But generally, you want to file an Intent to Defend unless you feel the debit is valid and then can prove its valid. In that case you want to negotiate a settlement or payment plan to forestall going to court.

Thank you for your response. However if the are bound by the FDPCA then a defendant always have a case and should be heard in court. Being an unsufisticated defendant, I may not have all the necessary information that is required to precede. The other thing is, I may not have being clear enough with my question with regards to who is the real plaintiff. On my summons the plaintiff is the Original creditor. And with the fact from the FDCPA that the third party is a debt collector, I find it kind of confussing to answer the summons. Still needs help!!

You answer the summons to the court with a copy to the plaintiff.

And no the defendant doesn't always have a case. There are only two valid defenses against a suit over a debt. One is that the debt is invalid, the other that the Statute of Limitations has expired.

It is incumbent on the plaintiff to prove both. If they can, then they will get the judgement.

If you are reading something from the FDCPA that is confusing you, then give us a cite or link and we may be able to clarify.

But the bottomline is that you either defend on the grounds that I listed or you negotiate payment.

Hello again, lyzz:]

You MAY have a case against HIM for violating the FDCPA, but in practice, the FTC who regulates them, isn't going to take action...

But that case, if you have one, is separate from the one where he's suing you. In THAT case, if you owe the money, and the statute of limitations has not run, you have NO defense.

Finally, I don't know why THAT creditor is listed as the plaintiff. Maybe they still ARE. What difference does it make? You owe the money to WHOMEVER. I'm sure there's a phone number for the attorney. Call him up. But, no matter WHO the plaintiff is, THE ATTORNEY is their representative and it's HIM whom you need to negotiate with.

IF you wish to go to court, answer the summons by writing a letter to the court, denying every allegation contained in the complaint. Then ask the judge to consider your letter to be an answer. Send a copy via certified mail to the lawyer, return receipt requested, and the same with the court.

excon

I know that there is a case where the debt collector list the plaintiff as the OC, but it was the debt collector themselves who has really brought the suit.
Even if the debt is real, isn't it the plaintiff who has the burden of proof? I just call the OC and OC says they don't have the debt anymore and gave the name of the attorney (debt collector) that is handling the debt. What I find interesting is the debt colletor who file the suit is not the attorney that the OC says has the debt. Still needs help!!

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Originally Posted by lyzz

I know that there is a case where the debt collector list the plaintiff as the OC, but it was the debt collector themselves who has really brought the suit.
Even if the debt is real, isn't it the plaintiff who has the burden of proof? I just call the OC and OC says they don't have the debt anymore and gave the name of the the attorney (debt collector) that is handling the debt. What I find interesting is the debt colletor who file the suit is not the attorney that the OC says has the debt. Still needs help!!!!

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The company purchasing the debt owes the debt and has the right to sue to recover. I think that's a side issue here. If the Plaintiff DOESN'T have the right to attempt to collect, the lawsuit will be thrown out of Court when challenged.

Once it's out of the hands of the original creditor ANYBODY could own it.

What do you need help with?

Hello again, lyzz:

You're doing fine on the telephone. Keep doing it, and you'll find out who you need to negotiate with.

Sure, they have the burden of proof. Didn't you sign a credit card application? I'm sure he's got a copy of your signature. What more proof than that do you think he needs?

excon

Yes the plaintiff has the burden of proof, that's what I said. But if he can prove the debt is valid and he has a right to collect on it, then he will get a judgement.

All of these side issues you are finding out about are just that, side issues. They don't have any bearing on your immediate issues. All they are doing is confusing you and making you miss the forest for the trees.

Bottomline, the plaintiff has to verify the debt, show the SOL hasn't expired and prove he has a right to collect it. If he can't prove all that the suit will be thrown out. If he can prove all that he will get a judgement.

Forget all the rest and concentrate on that.

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Originally Posted by JudyKayTee

The company purchasing the debt owes the debt and has the right to sue to recover. I think that's a side issue here. If the Plaintiff DOESN'T have the right to attempt to collect, the lawsuit will be thrown out of Court when challenged.

Once it's out of the hands of the original creditor ANYBODY could own it.

What do you need help with?

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Thank you JudyKateTee,
I need help in formulating my answer counterclaim. The summons says that I am required to file answer to the complaint and must state as a counterclaim as provided by Rule 13 (a)
RULE 13. COUNTERCLAIM AND CROSS-CLAIM

(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim for relief the court has power to give which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not either require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction or constitute an action required by law to be brought in a county or judicial district, as the case may be, other than the county or judicial district in which the court is sitting. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13, or (3) if part or all of the pleader's claim is based upon property damage arising out of a collision, personal injury, including actions for consequential damages, or death. In actions in the Land Court for registration and confirmation pursuant to G.L. c. 185, and tax title foreclosures, brought pursuant to G.L. c. 60, no party may assert a counterclaim under this subdivision or subdivision
Thank you

Again I ask where you were told about Rule 13(a) and where did you find that explanation.

As I see it you have no counterclaim unless it's that the SOL has expired.

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Originally Posted by ScottGem

Yes the plaintiff has the burden of proof, that's what I said. But if he can prove the debt is valid and he has a right to collect on it, then he will get a judgement.

All of these side issues you are finding out about are just that, side issues. They don't have any bearing on your immediate issues. All they are doing is confusing you and making you miss the forest for the trees.

Bottomline, the plaintiff has to verify the debt, show the SOL hasn't expired and prove he has a right to collect it. If he can't prove all that the suit will be thrown out. If he can prove all that he will get a judgement.

Forget all the rest and concentrate on that.

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Thank you, Don't have the money to pay, so if I don't show up I will get a judgement and if I show up and lose I will still get a judement, so I at least rather try and help myself if I am sinking. Cannot give up!!

I agree, you shouldn't give up. But you need to focus on the real issues. Your only hope will be that they don't have the documentation.

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Originally Posted by lyzz

Thank you, Don't have the money to pay, so if I don't show up I will get a judgement and and if I show up and lose i will still get a judement, so i at least rather try and help myself if i am sinking. Cannot give up!!!

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I'm not saying you should roll over but you can't answer and defend if you have no defense.

You have no counterclaim - this is a contract matter, not personal injury, real estate or anything else mentioned in that section. You may or may not have a defense - but you don't have a counterclaim and that section is not applicable to your matter.

By the way I agree with Judy, that Rule 13(a) does not seem to apply to you. That's why I asked where you got it from.

As I said I don't see any grounds for a counterclaim either.

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Originally Posted by ScottGem

By the way I agree with Judy, that Rule 13(a) does not seem to apply to you. That's why I asked where you got it from.

As I said I don't see any grounds for a counterclaim either.

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I got it at the trial court law library on civil procedures

Ok, but who told you it would apply to you?

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Originally Posted by lyzz

I got it at the trial court law library on civil procedures

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This section basically (very basically) says if you have a counterclaim, you MUST file it now; don't sue the Plaintiff on some part of this same issue at some time in the future. That's a very basic explanation.

You don't have a counterclaim.

I would file an answer, state you don't HAVE a counterclaim, give your defense to the action, serve the Court and the Attorney.