Need help filing an answer

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

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.

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.

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.

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

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

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

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

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.
_________________

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?

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

who is hanky spanky?

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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?

You can't go to jail for a debt. Debts are civil matters, not criminal. Also you would use "I do not have a business relationship with Plaintiff (Plaintiff lacks standing.)" as your defense and serve them with requests for the previously mentioned documents.

If they try to present affidavits as their defense you can object to them as hearsay unless the person who signed the affidavits is present at the hearing.

If you lose, can they take something that belongs to your family even if their name is not on the debt? I live with a friend, but she had no involvement in this account.

Also,Where do I get these papers to serve them with requests? Does the court have it, or do I have to send them a letter of my own?


Thanks JCEMT

There is generally a specific format that is required and differs somewhat from state to state. You can check your local court website to get that information. As to your first question, personal property that does not belong to you is certainly exempt.

Also, there is a complaint with this summons

First course of action:
(1)Defendant resides in county which the actio is brought
(2) Defendant used a card issused by the plaintiff's assignor (they name original creditor)
(3) Defendant failed to make payments

Second cause of action
(1) Defendant accepted plaintiffs statements
(2) Account stated between plaintiff and defendant

How can I answer this, all three are true under first course of action. But under second cause, I never receieved statements from them, only one threatening to sue me, and I never stated anything to them.

Then your answer would be like this:

(1) Defendant does reside in county which the action is brought
(2) Defendant does not have sufficient information to confirm or deny
(3) Defendant does not have sufficient to confirm or deny.

The reason for the way I answered 2 and 3 is because you are posing the question of did the CA actually get the account from the original creditor? Does the CA have any legal entitlement to the account in question? And is this your account?

As to the second cause of action, I'm really uncertain. Perhaps skydver or someone else a little more versed in judicial proceedings will be able to chime in on this one.

Thank you JCEMT, I am confused about the second one as well.

Just received an automated message from them on my answering machine. It said please call us back to discuss a "debt act", does anyone know what that means?

Wonder if they could be referring to the Fair Debt Collection Practices Act or they are trying to collect.

They just left a message , metioned my name, the recording said that if this is not (my name), to hang up, they it said to call and discuss the debt act. I'm wondering if they are calling to offer me a payment arrangement.

Thanks for the help. I just need to know what to put for second cause of action

hi guest....

ok, first, let's establish a bit of a timeline. You said that you got a letter that notified you of the 30 days in which you could respond. Then you said you got a summons not long after. The first question I have is "how long after"? If they sent you that letter and then moved on to sending you a summons within that 30 day period, they are then guilty of 'overshadowing'. By filing a case against you within that 30 days, they didnt afford you that entire 30 days to dispute the debt, and thats a violation of the fdcpa.

OK, now, onto the answer. Your job at this point, even if you owe this debt, is to make them prove every claim they are making against you. Here is why I say that--

1--they could be trying to get more money from you than you actually owe.

2--they might not even have the legal right to collect the debt in the first place, and if thats the case then paying them will NOT pay off this debt. Thats simply a form of theft and it happens a lot more often than you may think.

You need to make them prove the debt is legitimate, the amount is legally correct, and that they have the legal right to collect it--either through ownership or assignment. If they cannot prove those three things in front of the court, your one and only response at that point would be to make a motion to the court to dismiss the case with prejudice.

Next--how old is this debt? If it is beyond the statute of limitations for your state, then there is your answer in a nutshell. What state do you live in, by the way? I'm guessing that they filed this complaint in the county where you live, right? If the date of last payment is outside the statute of limitations, then the entire lawsuit would be null and void--but ONLY if you invoke "expired SOL" as your affirmative defense. The court itself will not bring it up for you--you would have to do that. So, let us know what state you live in and how old this debt is, and we will help you figure that part out and go from there.

For now, the only other thing I will mention is that the information you would be looking for--the documentation that proves the account details--would be something that you request through discovery. I would file a motion with the court(as well as send a copy certified mail to the plaintiff) for discovery, listing the exact documentation youre requesting that they peovide. They are the ones who are making claim against you--so they are the ones with the burden of proof upon their shoulders. Make them prove every claim they have stated against you. But we'll get to that more once you reply and let us know your state/how old this debt is.

Hi Skydivr,

I am in New York. This account was opened in 2000. The last payments I made toward this account was probably 8 or 9 months ago to another collection agency. Fast forward to this year, I get a letter from this collection agency saying that I owe them money for this account, I never received anything from them prior, right after that,around May 4th, I get another letter from a law firm who is representing them telling me to make a payment on this account or I will be sued. On May 29th, I receive the summons. How do I request that they send information proving that they own this account? Do I tell the court when I answer, or do I send a letter to them myself?

Also is it too late for me to do that, in other words, do I have any chance, since I had attempted to call the law firm, and ahouls I answer the first cause of action like JCEMT said in the above post?

Thank you

hi again--

first off, do you still have all these letters? Especially the first one that came right before May 4? Please tell me that you do...If so, you have them on a fdcpa violation right there.

Now, the attorney's letter--did that letter also have the same statement about "you have 30 days to dispute this debt...."? It should have, since it was sent to you by someone else, who is not an employee of the debt collector. The attorney in this case acted on its own as a debt collector because they engaged in a collection attempt--that is, they sent you a letter demanding payment or they would sue. You should check with an attorney in your state, but this whole lawsuit was improperly filed in my opinion. You see, the initial communication from ANY third party debt collector must either state that you have the 30 day window, or that third party must provide a statement of those rights to you within 5 days of initial communication. Who is the actual plaintiff listed on the summons? You may have TWO cases of overshadowing going on here....against both the CA and the attorney.

As for requesting this information, sending a letter to the plaintiff yourself would be a waste of time. At this point you want to make sure that everything is done through the court, so that the court has a record of every word that goes between you and the plaintiff. The way you would request the documentation is called "motion for discovery". You need to check your state's rules of civil procedure to see the exact format required when requesting discovery, as there may be a specific form you must use.

What is the date that you must answer by? We will do our best to get this all lined up for you before then. But please, get back to me about those letters, if you still have them and all. That may well put a whole different angle on things!

Sky,

I have the letter, that was the last letter that I received from the attorney prior to the summons. The letter basically told me to contact them immediately to pay, and at the bottom it said something to the effect of, no lawyer has reviewed this case. I'm not exact about that, but it was something like that.

The plaintiff on the summons is the collection agency, but on the summons lists the attorney's firm.

They filed this summons on 5/21, I received it the attorney's copy on 5/29, with the court copy on 5/31

do you happen to have the letter that the debt collector sent to you right before you got that attorney's letter? That one could prove interesting...

I have that one also, that was dated mid April, just said that I had 30 days to pay or they would forward to their attorney.


What date do you start counting the 20 days from the summons? I receievd it on the 29th of May, they filed it on the 21st of May

I really appreciate all you're doing

OK, you count from the date you received it, and not from the date they filed it...so 20 days from 5/29.
Also, let me see if I have this correctly. The CA sent you a letter in mid-April, telling you that you had 30 days to dispute this. Right after that you got a letter from the attorney? I am interested in exactly how these two letters are worded. Something just seems fishy to me, and I cannot put a finger on it until I can see exactly word for word how they wrote those letters. Perhaps you could post them here word for word, or if youre more comfortable, you could send me a word-for-word copy in my email-same screen name as I use here at yahoo dot com. I just want to make sure we arent missing anything.
alright, as to your answer from earlier, I would do it like this:
??????
I would respond:
First cause of action
1) Defendant agrees with this statement.
2) Defendant does not have sufficient information to affirm nor deny
3) Defendant does not have sufficient information to affirm nor deny.
Second cause of action
1) Defendant denies this statement.
2) Defendant denies this statement.
What they are saying right there is the plaintiff's assertions. The plaintiff claimed right there that they told you about the account and that you accepted their statements concerning the account. This is a common tactic used by bottom-feeders like MCM often--this is one way that they try to get around actually having to validate anything about the debt. If you tell the court in this answer that they explained the debt to you and that you agreed to their explanation, it takes your whole attempt at getting them to prove it to the court right off the table--they would simply tell the judge, "hey, he just said that we told him about it and that he accepted our explanation...." That is why you deny everything and make them prove it to you. Remember--you dont even know if these guys have the legal right to collect two cents from you at this point and you wont know until they provide proper proof of the debt as well as proof of their ownership or assignment on this debt. But hold off--dont file an answer just yet. Please get that email to me or post it up in here, and lets make sure that we cover all the bases.

Ok. I will send you an email with the documents. I am not in front of them right now, but I can send them to you tomorrow first thing.

It's funny how you mentioned MCM, cause that's who it is.

Also I will send you a letter that I received from the attorneys on Sat. They just wrote telling me to call them and it was signed by their debt collector.

Today, and I posted this earlier, they (attorney office)called my house, left an automated message on my machine saying to call them to discuss a "debt act", I have no idea what that means.

As long as I still have time to answer, I will wait till you see the documents, I don't want to make any mistakes. My biggest concern in all this is that I hope I didn't hurt my chances when I tried calling them, I didn't really think of my options, I was so scared that I just called to try and arrange something with them.