Received a summons and complaint today

As far as I know, in order to file a response to the summon, you need to visit the clerk's office in the court from where you have received the summon and fill up the response form within the date as mentioned on the summon, else the creditor can bring a default judgment against you.

i know ALL that...but i am just wondering on HOW to word it. should i include i am unemployed due to personal reasons? should i request in my answer that i want the proof by them showing me the original signed contract i had with the creditor?

Hi Michigangirl
Yes, you can definitely ask the creditor for a copy of the original signed contract, but it is not mentioned anywhere in the FDCPA that the creditor need to provide you with a copy of the signed contract towards debt validation and so the creditor may not provide you with the same. You need not hire a lawyer to file a response to the summon, if the summon has been issued by a small claims court. Can you tell me from which court have you received the summon?

Hi novice.
the summons is from michigan 37th district court.
the only reason i ask about them proving the debt wit the written contract is because i read in blog posted by a local debt attorney about a case where the lady being sued denied the debt when all they could provide her with is an affidavit.
heres the story:
Attorneys for Debt Buyers beware...they are on to us!

I love defending people against debt buyers because the Plaintiffs case is as strong as a house of cards in a hurricane. Debt buyers buy judgments, credit card charge offs and other sordid garbage debt for pennies on the dollar. Hell, there are even debt buyers that buy debt that has already been through a collection agency or two. Usually, when a debt buyer purchases his paper, he gets little more than the judgments or a spreadsheet showing the balances due. What does this mean for the consumer that is sued? Everything. The debtor buyer has no proof that the consumer owes anything other than some shmoe's word for it that the debt was owed in the first instance. Recently, someone got wise to the idea that an attorney who sues on this crap and does not have the goods to show that the debt is actually owed, may be violating the Fair Debt Collection Practices Act. I can't wait to share this case with you.

In Isom v Javitch Block and Rathbone ("Javitch"), the defendant is a law firm that had sued Ms. Isom in state court for a debt that was purchased by some company called Direct Merchants. Javitch attached an affidavit to its complaint that had been prepared by Direct Merchants. When Ms. Isom demanded discovery in the state court case, Javitch simply dismissed the case. Why? Because it did not have any proof to show that its client was entitled to any money from Ms. Isom. Now, its Ms. Isom's turn.

She sued Javitch in federal court and asked for class action status. She alleged that because Javitch had sued her without having any documentation to show that she owed the debt that Javitch had violated the Fair Debt Collection Practices Act. Ms. Isom alleged in her complaint that Javitch attached a false affidavit signed by Direct Merchants that said that Direct Merchants had personal knowledge of the balance due by Ms. Isom. The court held that because Ms. Isom alleged fraud her complaint against Javitch, that she has enough of a case to go to trial. The court denied Javitch's Motion to Dismiss Ms. Isom's claim.

In analyzing Ms. Isom's case, the court noted two lines of cases that dealt with the issue of whether a debt collector violates the FDCPA by suing a debtor without having substantial supporting documentation for its case. In Delawder v Platinum Financial, the U.S. District Court denied the Defendant's Motion to Dismiss. In Delawder, the Plaintiff alleged that the debt collector had committed fraud because the affidavit in support of its case misrepresented the amount of the debt or the debt collector's legal claim upon the debt.

The second line of cases involved Harvey v Great Seneca Financial in which the Plaintiff alleged that the filing of a suit to collect a consumer debt without the means of proving that debt was a violation of the FDCPA. The court in Harvey dismissed the action stating that Plaintiffs do not need to prove their cases at the time that the lawsuit is filed. However, in Harvey, the Plaintiff did not allege that the affidavit attached was false.

In Ms. Isom's case, she alleged that the affidavit that was attached to the complaint against her in state court was false. She alleged that there was no way that the Plaintiff had "personal knowledge" of her debt to the original creditor. The court found that Ms. Isom's case should proceed to trial on the issue of whether the Defendant's affidavit was false and if so, whether it violated sections 1692e and 1692f of the FDCPA; the Act's prohibitions against false or misleading representations and against unfair collection practices, respectively.

Javitch pled to the court that it should not be held responsible for an affidavit that its client had signed in support of the complaint. Judge Barrett would have no part of that argument. Javitch's attempt to side step the FDCPA bullet was foiled when Judge Barrett correctly pointed out that it was Javitch that signed the complaint and attached the affidavit in support of its complaint. Javitch, as a third party collector, has to take responsibility for its own actions.

ATTORNEYS FOR DEBT BUYERS BEWARE. Remember that you are responsible to verify that the debt and every part of the debt that you are collecting is legitimate. The days of suing debtors without having proper documentation and hoping for a default judgment is like playing Russian r.. You are bound to piss off some debtor who reads my blog and knows his rights. Now, you have to doubly (if there is such a word), that the affidavit that you are attaching to your complaint is accurate. The FDCPA makes you a guarantor of sorts that the affidavit is bona fide.

you can read more of this attorney's blog by going here: michigancollectionlawblog DOT COM

also lucky for me a my husband's co-worker has a lawyer friend and he'll probably look over the paperwork for us and give us some hints and tips. i DO want to go to court and plead my case to the judge.
thanks for the advice....BTW: love you cat icon ;)

Hi Michigangirl
Since the FDCPA is silent about what should be the proper debt validation, the creditor may not provide you with a copy of the original signed contract. However, they need to produce the same before the court along with the proof that they have purchased the debt from the original creditor in order to bring judgment against you.

ok my ? is i called a phone service i payed using my capital one card but there still billing me and im in iraq and i dont wanna us my card over here but there still bothering me to give them there money what do i do

a little update. i am retaining an attorney to do my answer. he looked over the summons and complaint and said the affidavit is considered hearsay and they will have to come up with the original signed contract. so what i read in that law blog written by a local attorney is true. thanks for the advice but a free consultation with an attorney was more help.
my advice to anyone in this situation call around to local attorneys and see if they do a free consultation. with the bad times we are all facing it is most likely they will do a free consult and point you in the right direct.

Yes, you should always consult a local attorney to defend your case. But there are instances where the defendant cannot afford to pay the attorney fees. In such cases, you can defend your case by yourself in the small claims court, where you can ask the creditor for the original signed contract.

i wouldn't worry novice.sounds like they didn't want to put in the work to answer the summons themselves.btw,this attorney is charging you to answer the summons.you could do that during the discovery phase of the hearing yourself.not everybody has between 750.00 and 1,000.00 burning a hole in there pocket.thanks for the thoughts.i'll take it under advisement.