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tenstepper · Jul 17, 2009, 11:31 PM

I received my first summons in Feb. 2009. It stated that I needed to state in writing ny defense and deliver to the attorney within 20 days. I wrote it up and faxed it because the are in Seattle and I am in Yakima. I have the receipt of fax. On the 2nd summons it states that since I didn't file and Answer within 20 days that I am in default. They didn't say a word about this Answer thing that I needed to respond with and I think that this is very deceptive. Am I correct? Also on the Affidavit of the second summons with my court date, are they supposed to black out all of the numbers in my credit card except the last 4 digits? I am asking because they did on all of them except one. It has my entire credit card number. Court records are public and now everyone will have it. Is that legal? Do I have any grounds against them? What do I do? Can I still file the Answer thing that they are talking about? It also shows that I am being sued by Capital One. Capital One charged it off. So wouldn't it be the attorney that would be sueing me?

ScottGem · Jul 18, 2009, 04:40 AM

First, you need to file your answer with the court, not just the attorney. This is assuming the court issued the summons and it wasn't just a letter from the attorney.

Second, you have a court date so a default judgement hasn't been issued. Just make sure you show up for the hearing.

Third, if the account is in collections it has been closed and no one can use it. So not blacking out the full number isn't going to harm you.

Whether an account is charged off or not does not prevent the company from continuing to collect on it.

What is your defense by the way?

JudyKayTee · Jul 18, 2009, 06:18 AM

What is your defense to not paying the debt? I'd start there and work backwards.

tenstepper · Jul 18, 2009, 01:33 PM

Originally Posted by ScottGem

First, you need to file your answer with the court, not just the attorney. This is assuming the court issued the summons and it wasn't just a letter from the attorney.

Second, you have a court date so a default judgement hasn't been issued. Just make sure you show up for the hearing.

Third, if the account is in collections it has been closed and no one can use it. So not blacking out the full number isn't going to harm you.

Whether an account is charged off or not does not prevent the company from continuing to collect on it.

What is your defense by the way?

First of all, thank you for your reply. The first one I received was a summons with no number on it. It said nothing about filing an Answer or filing one with court. It only states that I must send my defense in writing to the attorney within 20 days. The second one I received with the court date on it states that since I didn't file an Answer that I am in default. I did what I was told to do. I think it is a vey deceptive practice, to ask for one thing and you are supposed to send another. Then tell you that you are in default because you didn't file something where it said nothing about it. I still don't think that they can leave a credit card number on there, since they obviously took great care in making sure they were all marked out. But missed one. My other issue is that my credit was issued and agreed upon with Cap One not the debt attorney. I don't understand why giving all of my personal information to another company without my permission can be legal. They in turn seemed to have given it to another place called National Attorney Network. Oh yea. Is it OK for a mortgage company to also claim to be a dent collector?

The reason I could not pay the debt is as followed. I lost my job that April and restarted a job on June 30th. I got behind on everything. I filed for a remod on my home and that company has jerked me around so much that I am going to file a lawsuit against them. In October, I signed up with a debt management program and Cap One was in it. In February they talked to the debt management company and wanted to make payment arrangements of $2100.00 and $200.00 a month. Totally unreasonable since I was in foreclosure due to an error with my mortgage company. My house was also put on the sale docket for May 09. In short, I had to file a complaint with the Attorney General to get the problem taken care of. I have had more medical bills due to that. This past year has been hell.

ScottGem · Jul 18, 2009, 01:48 PM

First, while it may be deceptive practices, it may not be actionable.

Your answer to not filing an Answer is that you did and you have the fax receipt to prove it.

As to missing one of your credit card numbers, you would have to show you were harmed to file suit on that. And yes its prefectly legal to give your info to another company to collect on a debt. The selliing or transfer of debt happens all the time. Nothing remotely illegal about it. But the plkaintiff does have to ptove they are entitled to collect on the debt.

Bottomline here is you have no defense against the suit. Inability to pay is not a defense.

So the only thing you can hope for is that the plaintiff does not have enough documentation to verify the debt.

tenstepper · Jul 18, 2009, 04:10 PM

Deceptive practices is a violation of the attoreys code of ethics.
Will that help me at all? If the honest things are not a good defense. Then what is considered a defense?

1. In general conduct:
a. Maintain a high standard of fairness, honesty and courtesy in the conduct of business and avoid any activity which would bring reproach on this profession or this Association. *

a. Avoid deceptive practices, statements or materials which would cause debtors to believe they are dealing with someone other than the member.

(Being deceptive and undermining the Defendant is not fair or honest.)

c. Operate under a name which does not imply or suggest that the agency is a branch of or associated with any department of the federal government, a local government or any court. The letterhead of the agency should clearly indicate that the agency is in the collection business.
(There is no mention of them being a collection business)

. Make certain that all personnel are familiar with this Code of Ethics and that they fully comply with it.

b. Show due consideration for debtor's problems and deal with them according to the merits of their individual cases.
(financial hardship can be a reason for leinency)

Will any of this help?

ScottGem · Jul 18, 2009, 04:24 PM

Not in your case against the suit. You are being sued for non payment of a debt that you incurred. The only defense against a suit of that kind is that the debt is not yours. A secondary issue would that the amount you are being sued for is incorrect.

The actions of the plaintiff are NOT a defense against the suit. They MIGHT make the judge feel more kindly towards your case. They MIGHT give you a cause of action against the plaintiff. But these debt collection firms are very experienced at skirting the law.

You are mixing up the actions of the plaintiff with the cause of action of the suit.

tenstepper · Jul 18, 2009, 09:47 PM

I understand why I am being taken to court. I just think that it should be done fairly. I am going to be filing a complaint against the attorney for vilotions of the Code Of Ethics.

tenstepper · Jul 18, 2009, 09:47 PM

I am also sending them paperwork to validate the debt

ScottGem · Jul 19, 2009, 04:55 AM

Originally Posted by tenstepper

I understand why I am being taken to court. I just think that it should be done fairly. I am going to be filing a complaint against the attorney for vilotions of the Code Of Ethics.

In an ideal world, everyone should be treated fairly. For example, Capital One should be treated fairly, by repaying the debt you incurred. They loaned you money in good faith and it would certainly be fair to repay it.

You need to look at this situation more objectively. You reneged on your financial obligation. That wasn't fair of you (may have been necessary from your point of view, but still not fair). You didn't follow the rules, but are now getting upset when the rules are not followed to get you to do the right thing. Sorry, but this is a two edged sword.

You certainly have the right to take action against the plaintiff if you feel rules and/or ethics have been violated. I think you will find, however, that you are banging your head against a stone law. I'm sure the plaintiff is perfectly aware of their legal and ethical responsibilities and are careful not to cross the line, even though it may appear to you that they have.

tenstepper · Jul 19, 2009, 05:22 PM

The point is that I tried to pay them by going through a debt management program. You have to have a certain amount of money in the account with them in order for the debt management compamy to try and settle with them. They are the only account that didn't want to try to make mutual payment arrangements. I know I owe them the money but they didn't even give me a change to try and pay it with affordable payments. So please don't talk about my debt and me not paying it. I tried to make arrangements. They didn't want to.

ScottGem · Jul 19, 2009, 05:35 PM

You still don't get the real issue. They have no obligation work through a service. The fact remains that you reneged on your debt. What you may have considered affordable payments may not have satisfied them. That is their right. I'm not saying I agree with their actions. Nor do I not empathize with your situation. But you are looking at this from a narrow point of view and you need to see a broader picture.

tenstepper · Jul 19, 2009, 11:15 PM

Thank you for all of your help Scott. You are a true "GEM". ;)

ScottGem · Jul 20, 2009, 04:55 AM

Glad I was able to assist. Please keep us posted.

tenstepper · Jul 24, 2009, 08:20 AM

I have a question. My summons was served to my husband and signed for by him. The man came to the door, asked if he knew me and my husband said yes. He said you need to sign these papers for her. I am the Defendant on the paperwork, my last name is different on the paperwork than my husbands. My husband doesn't understand english very well and had no idea what these papers were for and he told the man that. My husband is not a US citizen and his visa has expired. (We are waiting on the visa extension.( I don't think that is legal to have him sign for my papers when my name is the Defendant, not his.

Washington State law states:

(1) The summons must be signed and datedby the plaintiff or his attorney, and directed to the defendant requiring him to defend the action and to seve a copy of his appearance or defense on the person whose name is signed on the summons.

(3) A notice of appearance, if made, shall be in writing, shall be signed the defendant or his attorney, and shall be served upon the person whose name is signed on the summons. In condemndation cases a notice of appearance only shall be served on the person whose name is signed on the petition.

Is this allowable as a proper service of a summons?

JudyKayTee · Jul 24, 2009, 08:35 AM

Originally Posted by tenstepper

The point is that I tried to pay them by going thru a debt management program. You have to have a certain amount of money in the account with them in order for the debt management compamy to try and settle with them. They are the only account that didnt want to try to make mutual payment arrangements. I know I owe them the money but they didnt even give me a change to try and pay it with affordable payments. So please dont talk about my debt and me not paying it. I tried to make arrangements. They didnt want to.

The creditor is under absolutely no obligation to work with a credit counsellor or anyone else, including you. They have no obligation to settle for less than what you owe them and that includes fees, disbursements and interest.

They are able to collect from you in any means that is legal - and that includes suing you and getting a Judgment which they can then enforce according to your State's laws.

And as far as the "don't talk about my debt and me not paying it" - you owe them and you haven't paid them. Isn't that was this is about?

As far as what you see as an ethical violation - by all means report it if it will make you feel better. I see no violation here.

As far as what they did or didn't tell you, what they should or shouldn't have done - this is the danger of representing yourself in these matters. I'm rather surprised that the Summons you received didn't say that you could not respond by fax but I'm sure if you checked the Statute you would find that you could not. I always advise people who are NOT Attorneys not to "play Attorney" and Attorneys almost never represent themselves.

excon · Jul 24, 2009, 08:47 AM

Originally Posted by tenstepper

Is this allowable as a proper service of a summons?

Hello ten:

Maybe and maybe not. But, your OWN actions prove that you've been served... So, I can't imagine you'll win THAT. And, EVEN if you fight it based on improper service, they're just going to serve you again.

In addition to things Scott said to you, it's really NOT in your interest to proceed like you have been. You should know that the attorney who is suing you, is ADDING his legal fees to the amounts you owe. The BANK isn't going to pay him - you will. He's THRILLED about the time he can bill the account.

So, whether they're ethical or not, or whether the service was legal or not, you have NO defense to the suit, and you're eventually going to lose. At this point, it's not a matter of IF. It's a matter of HOW MUCH.

Toward that end, if you want to pay the LEAST amount, I'd borrow some cash and make an offer... With Cash in your hand, you could settle the debt for as little as $.25 cents on the dollar.

In the final analysis, it's got nothing to do with fairness, ethics, payment plans, and/or how bad they are, or even how bad you are... It's a matter of $$$$$$$$$$'s.

excon

JudyKayTee · Jul 24, 2009, 09:02 AM

Originally Posted by tenstepper

I have a question. My summons was served to my husband and signed for by him. The man came to the door, asked if he knew me and my husband said yes. he said you need to sign these papers for her. I am the Defendant on the paperwork, my last name is different on the paperwork than my husbands. My husband doesnt understand english very well and had no idea what these papers were for and he told the man that. My husband is not a US citizen and his visa has expired. (We are waiting on the visa extention.( I dont think that is legal to have him sign for my papers when my name is the Defendant, not his.

Washington State law states:

(1) The summons must be signed and datedby the plaintiff or his attorney, and directed to the defendant requiring him to defend the action and to seve a copy of his apprearance or defense on the person whose name is signed on the summons.

(3) A notice of appearance, if made, shall be in writing, shall be signed the the defendant or his attorney, and shall be served upon the person whose name is signed on the summons. In condemndation cases a notice of appearance only shall be served on the person whose name is signed on the petition.

Is this allowable as a proper service of a summons?

This IS legal service - it is required that service be made on a responsible person of legal age on behalf of the Plaintiff. Assuming your husband (illegal alien or not, English speaking or not) is a responsible person (without mental defect) of legal age, you have been served.

You need to read the rules of service for your State. You are researching in the wrong areas.

If it is required to be signed - and in NY as long as the original is signed the copies do not have to be and the original is filed with the Court - then you certainly have grounds to set this Summons aside. Of course, you'll be served again, personally, in Court if this Summons is found to be faulty.

You owe the money. You have no defense and a lot of excuses. You also are "playing Attorney," which is dangerous and could be very costly in the end.

tenstepper · Jul 30, 2009, 12:09 AM

Its pretty obvious that you and Scott are from New york. Very rude. I asked a question and didn't except to be slammed to the ground. I expected help from someone else out there in a kind manner. Not someone who is rude to the core.

tenstepper · Jul 30, 2009, 12:14 AM

Thank you Excon for your helpful suggestions. I appreciate it. ALso to the others. My case is being handled in a very poor way. These attorneys "skirt the law" while I am supposed to abide my it. I know I owe the money, I know all the crap you told me. I wasn't born yesterday! I researched the information and found the information on what it requires to be served a summons. I am not an attorney, nor am I Playing attorney. I am simply protecting myself however I can. If I were an attorney I wouldn't be in debt! They make a lot of money being ambulance chasers and going after hard working people. Sorry, I wouldn't ever want to be one of those greedy suckers.