Got a summons - what to do?

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.

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.

Quote:

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.

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.

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. :)

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.

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.

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.

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.

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! :)

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.

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:
??????????
In this case, I do not see any petition and answer. I just see a notice from the court saying "show up on thi date or you lose the case by default". Anyone have any more info or experience that can help us out??
ah, here we go. I have located the official summons form itself. Theresa, this is what your summons should look like(dont forget to put the www. in front of that):
web.archive.org/web/20020612153919/www.courtrules.org/fono1sum.htm
The main body reads like this:
??????????
Does that look like yours?

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.

--Any advice would be great...--

Pay your bills

Mine doesn't look like that. There's no option to "answer" it - it just tells me to show up to court at a certain time and date in front of a judge. The judge (I looked him up) handles small claims court.

If they did send me something previously that they intended to sue me, I didn't see it, and it's not attached to the copy of their suit against me.

I have not spoken to the original creditor or Calvary or anyone for years.

I'd like to have them verify that the payment was made, but I'm not sure I should call them, because I don't want to screw up the SOL if this suit is in fact something I could get dismissed because they messed up.

It's possible they skipped a step, I'm guessing, in order to get it in before the SOL ran out. I don't really know.

Bah, nevermind. It's not small claims court. It's a "breach of contract" - time to go do more research.

ok, theresa, calling the CA will not start the clock over on the debt. But I would at this point advise against doing so anyways. Note--I am not an attorney, I am just a guy that studied and continues to study the law. But calling them at this point will not get you any answers, nor will it take care of anything, really. What you need is an authority to spell it out if the CA has broken the law, and you talking to them will not accomplish that.

At this point, they appear to have already tried to illegally reage the debt by claiming that a payment was made. Here's the thing--the burden of proof is on them once you get in the courtroom. They need to prove that the payment was made by you on this debt. If they cannot provide concrete proof, your only response to that should be to move for dismissal on the grounds that the SOL is expired on this debt. Remember--SOL is an affirmative-only defense. By that, I mean you have to actually bring up the statute of limitations as your defense. The judge will not automatically throw the case out on his own if he sees that it's outside the SOL. So, be sure to mention this because if you dont the suit will proceed. Basically, you need to challenge everything and demand validation of everything. CA's often take people to court that dont know their rights, and often the court rules in favor of the CA simply because the consumer didnt know enough to ask the right question. Sad but true.

I would still check with the court and make sure that there is even a case there. If this is a legitimate case, your focus needs to be on two things--

1) improper service, in that you were never notified in any manner of this complaint until there was a court date. You were never given the chance to answer the plaintiff's petition.

2) (this is the most important one) you have no knowledge of any payment and the plaintiff has not provided you with any proof of that payment. And without that payment, this debt is outside the statute of limitations according to your state's laws.

Do your research now, before you go into the courtroom. I can help you with the actual statutes you will need to support your arguments if you like, so you will know where to find all of these things. It would probably be helpful for you to bring printed copies of the statutes into court since it can be a lot to memorize. The judge will know the law, but if nothing else it will show the court that you did your homework and took this seriously enough to be prepared. A judge sitting on the fence is far more likely to give you the benefit of the doubt when you show up in his/her courtroom prepared to handle the business at hand.

I called the court and found that there is a case - but I'm supposed to show up for a "call docket" session. The clerk said that basically the lawyers are going to try to work something out with me and then the judge - who won't even be at the meeting - will approve it. If we can't reach an agreement, then it goes to actual court.

My only worry about bringing up a SOL issue is I'm not 100% positive that a payment wasn't made. I'm pretty positive - I wasn't working then, so I doubt I made it. In either case, the payment would have been to Discover, not to Calvary.

As for impoper service - I have, in the past, gotten nasty grams from Calvary. It's been a long time, but I did get them. They always wanted the whole thing, though, and I never had that much money. I still don't! The credit limit on that card was $1,000 - they're suing for almost $3,000.

The woman on the phone said I could file a counter claim, and if I were 100% sure I didn't make that payment, I probably would, but if I'm wrong, I'd be in even more trouble!

Is there any way to find out if a payment was made? I have the same bank account but I don't have records that far back. Would my bank? It would be fairly easy to see if I made a payment, if I had my bank statement from then. Maybe I'll give them a call...

yes, call your bank. ASk them for a statement from that month/year. If you can get that, and it shows that no payment was made, then you should be in the clear.

by the way, you got bad information on the phone from the court clerk. If they told you that you would be in trouble over that, they lied. First off, you dont even need to file a countersuit to state that SOL has expired. I dont know where in the world she got that from. Second, if to the best of your recollection no payment was made, and they could then prove that you did make one, you wouldnt be in trouble--you would lose your countersuit. It isnt like they are going to haul you off in handcuffs or make you pay twice the amount or something. If it is a genuine error and not done with the intent to defraud you would be fine. But that's not even the case, because you dont need to countersue to excercise your rights on this.

Check with the bank and let us know what they say. Hopefully they can get you the records you need. What happens there will decide your next step.

Me personally, I believe in paying off your debts. The SOL is only a defense against a lawsuit, they still have the legal right to try to collect the debt. They just cannot sue you over it again if SOL is expired. But what this will do for you is this--if theere was no payment, you will have them on an attempt to reage the debt. This is a fdcpa violation. Each FDCPA violation is worth $1000--I mean, if you sued them over their FDCPA violations, and your suit was successful, you would be entitled to $1000 per violation. At this point, I would use every violation that they have committed as a bargaining chip. If there was no payment, and they lied about that happening, I would go to this court date armed with that information and use it to get a better settlement for myself. If they have violated the FDCPA enough times, I would honestly just sue them. Yes, if its your debt then you are responsible for it, but that doesnt excuse violations of federal law on their part. And, if I owed $3K, for example, and they had five violations of the FDCPA that I could prove, then I would walk in there and tell them that we can settle this by having them mark the debt as paid in full, remove it from my credit reports, and call it a day. If they refused it would cost them $5K when I sue them...or they could eat the $3K debt. Their choice.

Inclusive with details of who they are, what they are doing, and why they hate you and want money (sorry, a joke) there should be a statement that basically says "if you don't agree with any of this then then go to a) this place on this date at this time or b) file an answer before the date and time" if not, of course I don't know how your county court system works, it may not be required to file response beforehand...i would contact the courts to find out.

In general (at least what I did) was IMMEDIATELY send them a DV letter (certified!). Don't under any circumstance let them default, so read it carefully and find out what you need to do. An answer to a summons basically has a page that asks "the damages to the Plaintiff aren't due because..." and "why the damages arent due" and "will you counter-sue?" kind of inquiries.

I'm sure it isn't fake, but your county may have different rules that apply to civil suits, and I'm just running with the punches that I've researched so take this with a grain of salt if you want, no hard feelings :)

shodankid is right--do not let this go into a default. At that point, sending a DV letter is a good idea...but it will not stop anything. If youre sending the DV letter in response to a summons, the court case will go ahead regardless of if they validate or not. Then, you have to request validation of the debt in court, in a motion for discovery. I would guess that most DC's will ignore your DV request if it is sent to them in response to a summons because they know that all of that will be dealt with in court anyways.

I am just puzzled as to why it appears that you were not issued a proper summons in this case.

I just called the bank and the man was really helpful!

He faxed me the month I needed - and the month before and the month after. Nothing was paid out. There's a few ATM withdrawls, and three checks. I can't see the checks, but they're for random amounts like $13.07 so it wouldn't be a payment, as those are generally rounded.

So! I can't believe they would actually say I made a payment when I didn't!

Since this is a call docket, the judge technically won't be there unless I request him (according to the clerk). Should I request the judge be there for the call docket meeting or should I file a counter claim saying the SOL has passed?

Thank you all SO much for your help.

If anything, I AM going to get debt consolidation. It'll be nice to not avoid the phone and have this shadow hanging over me. I want to buy a house eventually and right now I can't even get approved for a credit card. All of the debt is really old, but still. I need to get my credit report cleaned up!

I'm home now, and have the summons in front of me. Here's what it says:

"You are summoned to appear before this court on the date, time, and location above to answer the attached petition. If you fail to do so, judgment by default will be taken against you for the relief demanded in the petition. You may be permitted to file certain responsive pleadings, pursuant to Chapter 517 RSMo. Should you have questions regarding responsive pleadings in this case, you should consult an attorney."

So - that's what it looks like.

*goes off to look up responsive pleadings*

that makes it simple. Your answer is this--that the lawsuit is unlawful.

Defendant hereby moves that this suit be dismissed, on the grounds of expired statute of limitations. Statute of limitations in your state is what, 3 years? All you need to do is bring the bank statements to show that you did not send them the payment they are claiming you did. If they still insist that you did make this payment, demand proof of the payment. Put it back on them where it belongs.

Now, if they cannot prove that you restarted the SOL with a payment, then the court should not find that the SOL is still unexpired.

Do I need to go to court to do that? It seems weird they're having me to go court to answer this, as opposed to just sending in my answer.

Since the judge won't even BE there for the first one, is there any way to get the suit to be dismissed before that, by writing him?

I live in California & received a summons from a creditor I had contacted regarding my debt. I mailed them a certified letter requesting a statement and notified them I wanted to make payment arrangements. they did not respond with a statement only a telephone number. I spoke to them via telephone and they told me my only options were to pay $200 per month w/interest. I verbally told them I could not pay them that amount. I have received a summons, I made a response, but I don't know what to expect in court. Do I have a right to get a statement regarding what I owe and do I have an opportunity to make payments? I have made small payments and will continue to make payments until I go to court and settle this matter. I just don't know what to expect. I am literally losing sleep over this and my health is seriously affected. can anyone help with where to look regarding my rights? can I make payments, can I get a statement with a fair amount?? or am I at their mercy

I don't have an answer but I am going through the exact same thing. My original debt was $1500. This was a couple of years ago and now a collection agency served me with a summons and they say I owe 2,277 plus $198 and attorney fees and whatever else they want. I contacted them saying I could only pay the $1500 in monthly payments and have thus far sent $400 which they accepted but are taking me to court because I won't sign the papers saying I owe what they say I owe and I won't give them my employer's information. Every paper they send me has no aknowledgement of the $400 i've sent over the last few months. I was served twice and I see no other way but to show up in court and face it in person. This happens in two weeks and I am very afraid of what happens next. They don't care that I'm a single mom trying to live on $10 an hour. And also losing sleep, living with stress headaches.

Here is a great site with comprehensive information on what to expect in a civil trial, your possible defenses, even negotiating a settlement to avoid a judgment:
"http://www.nedap.org/hotline/court.html"

It is for New York and may differ slightly in some aspects with your State.

my husband was recently served a summonsfor past debt.. we were just married in april and my name is on the summons.. how do we go about removing me from the summons/lawsuit?