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Guest · Posted: Fri Jun 06, 2008 10:04 pm Subject: Need help filing an answer

This is a long post, please bear with me.

Received a summons regarding an old credit card debt. Never received any collection letters or calls from this company until recently, the letter gave me 30 days to respond or would be forwarded to a law firm. During that time I received a letter from that law firm telling me to pay, not long after that I get the summons. I have tried contacting the collection agency but they wouldn't talk to me, they just gave me the attorney's number. I called them several times and I still haven't spoken to anyone.

Now, I need help on how to answer. I have heard that you should deny everything, well I know the debt is mine, except this isnt the original creditor, and yes, I did want to set up some kind of payment plan. With all these things considered, how can I defend myself without them getting a judgement, do I still have a chance?

Posted: Sat Jun 07, 2008 12:56 am Subject:

Dear Guest,

I don’t think that denying about the debt will lead to any solution, when you know that the debt does exist.

Summon or Subpoena is a civil suit paper and makes it mandatory for you to appear before the court. It must have stated the time period within which you have to respond to the complaint at your nearest local court. If you don’t respond to it then the collection agency will get a default judgment in their favor. So, it is better you respond to it. You can also get help of an attorney to make all the negotiations.

When did you receive the summon?

Regards,

Phoenix

Guest · Posted: Sat Jun 07, 2008 1:37 am Subject:

Send both the collection agency and the attorney a DV letter. Check with your court to see if a suit has been filed, a lot of times these are scare tactics. If they have filed, when you go to court deny owing the collection agency since you don't really owe them anything since you never signed a contract with them. Make the attorney provide you with debt validation in court and if he can't ask the court to dismiss the case with prejudice.

Posted: Sat Jun 07, 2008 4:24 am Subject:

I have a few questions for the original poster.
1. What type of debt is this?
2. When was the last time you paid on it?
3. What state do you reside in?

Also something else I noticed, you should certainly do as the second guest suggesting on sending the DV letter because apparently they may not be able to validate the debt (which makes the ownership questionable) why else would they try to pressure you into action within before the 30 day dispute deadline was up? BTW doing so is called overshadowing and is a violation of the Fair Debt Collection Practices Act.

Guest · Posted: Sat Jun 07, 2008 7:33 am Subject:

I checked with the court and yes, this summons is real. This debt is for a department store card, the last payment I made on it was about 10 months ago, I live in Brooklyn New York. My worry right now is when I answer this summons since I can't deny the debt is mine and the fact that I offered to make payments to them, will that hurt me? I noticed on my court's website, this collection agency is suing a lot of people.

Guest · Posted: Sat Jun 07, 2008 9:03 am Subject:

Here is a answer form for my state. How can I answer this with the information I posted (knowing about the debt but the plaintiff is not the original creditor) and that I have want to work something out with them.

Thanks

Guest · Posted: Sat Jun 07, 2008 9:08 am Subject:

Sorry, here is the form

(Check all that apply)
1. General Denial: I deny the allegations in the Complaint.

SERVICE
2. I did not receive a copy of the Summons and Complaint.
3. I received the Summons and Complaint, but service was not correct as required by law.

DEFENSES
4. I do not owe this debt.
I did not incur this debt. I am a victim of identity theft or mistaken identity.
I have paid all or part of the alleged debt.
5. I did not incur this debt
6. I have paid all or part of this debt
7. I dispute the amount of the debt.
I do not have a business relationship with Plaintiff (Plaintiff lacks standing.)
The NYC Department of Consumer Affairs shows no record of plaintiff having a license to collect debt.
8. I do not have a business relationship with the plaintiff
9. The N.Y.C Dept of consumer affaris shows no record of plaintiff having a licensse
10. Plaintiff does not allege a debt collection license number in the Complaint.
11. Statute of limitations (the time has passed to sue on this debt: more than six years).
12. This debt has been discharged in bankruptcy.
13. The collateral (property) was not sold at a commercially reasonable price.
Unjust enrichment (the amount demanded is excessive compared with the original debt).
Violation of the duty of good faith and fair dealing.
14.Unjust enrichment
15. Violation of the duty of good faith
16. Unconscionability (the contract is unfair.)
17. Laches (plaintiff has excessively delayed in bringing this lawsuit to my disadvantage).
18. Defendant is in the military.
19. Other:

OTHER
20. Please take notice that my only source of income is which is exempt from
collection.

COUNTERCLAIM(S)
21. Counterclaim(s): Reason:
This case is scheduled to appear on the calendar as follows:
Date: Part: Room: Time: Both sides notified

Posted: Sat Jun 07, 2008 1:27 pm Subject:

What is the name of the collection agency and law firm you are dealing with? Does the original creditor still own the account?

Guest · Posted: Sat Jun 07, 2008 3:42 pm Subject:

The ca is Midland/MCM, The original creditor don't own the account anymore.

Posted: Sat Jun 07, 2008 5:43 pm Subject:

In the interrogatories you should answer insufficient information to confirm or deny under anything that deals with the debt. Then you need to serve them with request for documents during discovery for the following documents:

1. Name of the original creditor and what the debt is.
2. A breakdown of the balance and how they calculated it.
3. Copies of any papers that show you agreed to pay what they say you owe;
4. Identify the original creditor;
5. Proof that the Statute of Limitations has not expired on this account
6. Proof that they are licensed to collect in your state
7. Provide you with their license numbers and Registered Agent
8. Proof that the collection company owns the debt/or has been assigned the debt. (They are legally entitled to collect this particular debt from you.) This is basic contract law.
9. Complete payment history, starting with the original creditor. (proof of your payment history with original Creditor, what the amount of the debt was when the creditor assigned the debt to their company, and what fees/interest has been tacked on to this debt and they determined these fees.) This requirement was established by the case Fields v. Wilber Law Firm, Donald L. Wilber and Kenneth Wilber, USCA-02-C-0072, 7th Circuit Court, Sept 2004..
10. Copy of the original signed loan agreement or credit card application. (Your contract with the original creditor establishing the debt between you and the CA.) This is also basic contract law.

If they are not able to provide these then you may be able to request that the case be dismissed with prejudice.
_________________

Guest · Posted: Sat Jun 07, 2008 5:57 pm Subject:

Thanks, how do I serve them with these documents? After I answer the summons? And can I check off defense 8, would that be enough for them or is that another form that I have to get from the clerk to state all the above that you listed?

Posted: Sat Jun 07, 2008 7:20 pm Subject:

You can check my signature link for a WEX legal dictionary as well as rules for civil procedure by state/district.

Posted: Sun Jun 08, 2008 2:43 am Subject:

who is hanky spanky?

Posted: Sun Jun 08, 2008 5:48 am Subject:

Guest please be aware that personal attacks will not be tolerated and will be removed per TOS.

Posted: Sun Jun 08, 2008 6:12 am Subject:

Any personal attacks on members, mods or guests of this site are unwelcome and will not be tolerated.

Your posts have been deleted and will continue to be deleted, regardless of what name you post under.

Guest · Posted: Sun Jun 08, 2008 7:35 am Subject:

Thanks to everyone for all the help and info. I am going to go and file the answer and on my answer form, there is no space to write anything, you just check off the box that says I do not have a business relationship with the plaintiff. Will the court know to request proof of ownership? Because there is no other place to write on the form.

You can't go to jail for this, can you?

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