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Posted: Wed Jan 30, 2008 7:12 pm Subject: Got a summons - what to do?

I posted this in the debt consolidation forum, but I think now that this forum might be better.

Basically, I got served with a summons tonight for a court date in late February.

The debt is an old credit card debt that was purchased by Calvary Investments. The SOL would have expired at the beginning of February, so they just missed it. The court documents say I made a payment in February of 2003. As I wasn't working then, I don't see how I could have made a payment, but I suppose it's possible.

Would there be any hope to calling the CA now and trying to work out a payment plan? I didn't before because they always wanted all of it, or half of it, and I never had the money.

I'd file for debt consolidation, but I think it's probably too late for that to help me, though you all might know better.

I don't want to go to court and I'm fairly sick over the whole thing. Any advice would be great...

Posted: Wed Jan 30, 2008 7:25 pm Subject:

If you are not sure you made a payment I think you really need to go to court. If you really don't want to go and you are willing to make a deal I would not do it on the phone, do it through the mail via registered mail return receipt requested.

Are you sure it is an official summons, I never heard of a summons saying you made a payment and you are now within the SOL.

Posted: Wed Jan 30, 2008 7:31 pm Subject:

Well, a deputy sheriff dropped it off, and it has a court date and all of that on it, so yes, I'd imagine it's real.

One of the pages says the debt was charged off in November of 2002, but that I made a payment in February of 2003. If that's true, I'm just inside the SOL (though the court date itself is outside of the SOL).

Would I send a letter to the law firm or the collection agency? I can't give them all of it (they want about $3k) but I can make payments on it. It might take me awhile, but I'd get it paid off.

Posted: Wed Jan 30, 2008 8:26 pm Subject:

Posted: Wed Jan 30, 2008 8:29 pm Subject:

Well, I poked around online and found a place for a debt management program. I'm going to get my credit report tomorrow and call them and see what they can do. Maybe they can help me. If not, the court date isn't till late February, so I'd have time to contact the CA, I think.

I'm just scared - more about court than anything else, as silly as that probably sounds. I just feel pretty alone with the whole thing. Blah.

Posted: Wed Jan 30, 2008 8:59 pm Subject:

hi theresa--

The first thing I would do is file the answer on the summons. If you do not file your answer in the allowed time, they will get a default judgment against you. You do not want that.

As I understand this, they just filed the complaint. They beat the SOL, so they can legally sue you. Remember this--it isnt when the case goes to court. The SOL provides them a certain amount of time to file the complaint and lawsuit, which they already have done. So yes, your understanding is correct on that.

OK, at this point, you need to make 100% certain that the payment they are talking about actually happened. Here's why--if you didnt actually make a payment in 2/2003, then this debt IS currently outside the SOL and SOL would then be the only defense you need. Did you make that payment to them in 2003? If you know you didnt, then now is the time to make them prove it.

If you're 100% certain that you didnt make that payment to them, then in your answer you need to state under 'affirmative defense' that this debt was charged off in 2002 and is thus outside the SOL. I am assuming that you already looked up the SOL in your state and found it to be 4 years...please let me know if that is not correct.

Posted: Wed Jan 30, 2008 9:10 pm Subject:

I don't understand what people mean when they say file the answer on the summons. It just tells me to show up to court or a default judgment will be put on me. So do you just mean going to court when they tell me to?

I'm not 100% sure I didn't make it - it's been 5 years - but I highly doubt it. If I didn't, then yes - it would be out of the SOL by now.

How could I find out if it happened? It says the debt was purchased by Calvary in 2004, so if the payment happened, it happened under the original creditor. Would Calvary have those records? What should I do from here?

Thanks so much guys - I'm starting to calm down just a little. It still sucks, but I've mostly got the image of debtors prison out of my head. Mostly. Smile

Posted: Wed Jan 30, 2008 9:50 pm Subject:

The date on the summons is probably the date you need to file an answer by. An answer is just that, you are answering their summons, example: I dispute everything except my name, obviously not written like that.

I don't know if it's possible everywhere but I know sometimes you can get a 30 day continuance extending the time you need to file your answer.(I need time to retain an attorney). That will give you a little time to make a decision on what you are going to do.

Posted: Wed Jan 30, 2008 10:10 pm Subject:

Theresa, something doesnt seem right....

What state do you live in?

A summons should have at least some basic information regarding the complaint made against you. Fling an answer is what you must do to initially respond to the summons. The case then goes to court, and at that point the defendant can file a motion for discovery, requesting that the plaintiff provide validation on the debt. If plaintiff cannot provide complete legal validation, then defendant can move for dismissal. The way you've described it, it sounds like a step was skipped.

Am I correct in thinking that this is Calvary Portfolio Recoveries, out of Phoenix, AZ? If it is, you need to go to the bud hibs website and read up on them. They are not known for abiding by the law, which makes me even more suspicious of this summons. You know what, here's what I would suggest. Contact the court clerk's office where this summons came from and verify with them that this case is even real, just to be on the safe side. If you find that it isnt real, let me know because that's very illegal of them to do that and there are things you can do about it.

Posted: Wed Jan 30, 2008 10:40 pm Subject:

Yes skydivr7673 , I think there was a step skipped, I'm in Ohio and do not know if the same laws apply where she is located, but, a similar thing happened to me. The CA failed to notify me properly before taking me to court, they violated my rights by not giving me the chance to clear up the debt. I actually sent a letter to the judge prior to the court date and asked for a continuance on the grounds that I was not properly notified. When we did actually go to court the judge dismissed the case because he said the CA did not follow proper procedure before filing a suit.

Posted: Wed Jan 30, 2008 10:56 pm Subject:

yeah, it sounds fishy to me. Thats why I asked what state she lives in.

Theresa, when you post the state you live in I will check the laws in your state and make sure that they are doing this legally. If they arent, then you have a really good shot at dismissal already.

Posted: Thu Jan 31, 2008 3:01 am Subject:

Thanks all!

I live in Missouri.

Here's what was on the summons/attached to it:

1) A summons telling me to appear in court at a certain time, in late February. A judge is named and all of that.

2) A copy of the lawsuit (just two pages explaining why they think I'm horrible and how much they want).

3) A copy of my original card member agreement with Discover.

4) A "Statement of Account" from Calvary that says how much is owed, the date of the charge-off (11/02), the date they say the last payment was made (2/03), and the date the debt was purchased by Calvary (4/04).

5) An affidavit of claim, signed by someone from Calvary, basically saying that the Statement of Account is correct to the best of their knowledge.

That's all that's there.

It's possible they skipped a step to make sure they got the suit filed by 2/13 - that's the day when the SOL expires (SOL in Missouri is 5 years).

I'm just worried they'll say they did try to contact me, but if they did, I don't know about it. Would they have sent another letter via registered mail or what?

You all are awesome, by the way. Thank you! Smile

Posted: Thu Jan 31, 2008 4:48 am Subject:

I doubt the first notification letter would have been by registered mail. It's usually in a plain envelope often mistaken for junk mail and throw away. All their system has to say though is that they mailed it out. It wouldn't matter if you received it or not.

What your going to look for to beat the judgement if you are going to do that would be to prove you didn't make a payment in 2/03.

Posted: Thu Jan 31, 2008 6:09 am Subject:

FYI--I thought the same thing...

But it still seems odd to me that there was no 'traditional' summons or requirement to file an answer with the court prior to a scheduled court date.

I am still puzzled, though---Missouri's Rules of Civil Procedure do not specify anything else about the form that a summons must adhere to. However, there is Rule 55.01, which states the following:

Posted: Thu Jan 31, 2008 7:50 am Subject:

Actually FYI, in my case, the judge told me that there was not a copy of any letter sent to me with an intent to sue (I don't think it mattered if it was certified or not, there just wasn't anything entered into evidence to that effect from the CA). He stated that I was not given the opportunity to make arrangements to make payments or even dispute the debt prior to receiving a summons. He took my word for it that I had never received any such notice, so it was up to the CA to prove they did send me a notice by having a copy available for the judge to see. What I remember the most is the judge said the CA did not follow proper procedure BEFORE they sued me. Therefore, the case was dismissed. Basically, all I said during the court proceedings was I had no clue who the original creditor was, and had no clue that they were suing me until I received a summons. I have not heard from that CA since then, and I honestly do not know if the case was dismissed with or without prejudice. Nothing to that effect was on the court papers I received after the proceedings.

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