just got served

OK first off you should call the court house listed to see if it is in fact a legitimate lawsuit. If it is then you will then file a motion to dismiss for improper venue. They sued you in the county where you do not live and they pretty much knew that you had moved to a new county, right?

So if it does get dismissed, they will most likely have to refile it in your county, this will take time so you can then set up payments or pay the whole thing off before they file again.

This is what you can do for now, other than that you will have to answer the summons and neither confirm nor deny the debt. Also any affidavit is hearsay and for the plaintiff to say you owe the money is not admissible for the fact they where not there to see you use the card, where not there when you signed the contract and probably do not have the original contract.

I looked up the last names for the attorney's and only 2 show up in NC, Smith and Meyers so if you have a first name we can see what law firm they are really from, nothing can be found on the law firm you mentioned so it's probably a basement firm.

Any other questions feel free to ask, I stop in here every day so I will be back later tonight. Here is a sample DV letter for you to format to your needs, send it certified mail return receipt requested and do not sign the letter, just initial it and type your name when you print it.

Your Name
Your Address
CITY/Town, STATE ZIPCODE

Date: March 9, 2005



Collection Agency Name
Address
CITY/Town, STATE ZIPCODE

Re: Acct Ref. # XXXXX and XXXXX

To Whom It May Concern:

This letter is being sent to you in response to a alleged debt. Be advised that this is not a refusal to pay, but a notice sent pursuant to the Fair Debt Collection Practices Act, 15 USC 1692g Sec. 809 (b) that your claim is disputed and validation is requested.

This is NOT a request for verification or proof of my mailing address, but a request for VALIDATION made pursuant to the above named Title and Section. I respectfully request that your offices provide me with competent evidence that I have any legal obligation to pay you
.
What I need you to provide as the debt validation is as follows:
1. What the money you say I owe is for;
2. Explain and show me how you calculated what you say I owe;
3. Provide me with copies of any papers that show I agreed to pay what you say I owe;
4. Provide a verification or copy of any judgment if applicable;
5. Identify the original creditor;
6. Prove the Statute of Limitations has not expired on this account
7. Show me that you are licensed to collect in my state
8. Provide me with your license numbers and Registered Agent
9. Proof that the collection company owns the debt/or has been assigned the debt. (You are legally entitled to collect this particular debt from me.) This is basic contract law.
10. Complete payment history, starting with the original creditor. (I need to have proof of my payment history with original Creditor, what the amount of the debt was when the creditor assigned the debt to your company, and what fees/interest has been tacked on to this debt and how you/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..
11. Copy of the original signed loan agreement or credit card application. (My contract with the original creditor establishing the debt between us.) This is also basic contract law.

At this time I will also inform you that if your offices have reported invalidated information to any of the 3 major Credit Bureau's (Equifax, Experian or TransUnion) this action might constitute fraud under both Federal and State Laws. Due to this fact, if any negative mark is found on any of my credit reports by your company or the company that you represent

I will not hesitate in bringing legal action against you for the following:
1. Violation of the Fair Credit Reporting Act
2. Violation of the Fair Debt Collection Practices Act
3. Defamation of Character

If your offices are able to provide the proper documentation as requested in the following declaration, I will require at least 30 days investigating this information and during such time all collection activity must cease and desist.

Also during this validation period, if any action is taken which could be considered detrimental to any of my credit reports, I will consult with my legal counsel for suit. This includes any listing any information to a credit reporting repository that could be inaccurate or invalidated or verifying an account as accurate when in fact there is no provided proof that it is.
If your offices fail to respond to this validation request within 30 days from the date of your receipt, all references to this account must be deleted and completely removed from my credit file and a copy of such deletion request shall be sent to me immediately.

It would be advisable that you assure that your records are in order before I am forced to take legal action.



Best Regards,

Guest, are you a member that forgot to sign in? If not why not become one. You seem to be quite versed.

I was a member and I cannot remember my password. I tried a few times to get a reset and I was never e-mailed with a new password. My user name is pok ertramp< no space, the word is not allowed,lol. and my e-mail is the same at hotmail. So if you can talk to someone about helping me, it would be appreciated.

OHHH Forget it just popped into my head for some reason lol.

That only happens to people my age! I am constantly answering those "forgot your password?" links.

Thanks so much for your help this morning.

We have a few additional questions that I have pasted on to your response.

OK first off you should call the court house listed to see if it is in fact a legitimate lawsuit.

If it is then you will then file a motion to dismiss for improper venue. How do we do this?

They sued you in the county where you do not live and they pretty much knew that you had moved to a new county, right?


? On the Civil Summons it states ???Date of subsequent summons issued??? document lists November 14, 2008 ???? We never received this summons.

?This document is stamped with a Date of January 28th 2009 Union County.

?The document states that we are notified to appear and answer the complaint of the plantiff???

1. Serve written ???answer??? to the complaint to the plantiff or their attorney within 30 days after you have been served (2/8/09)
2. File the original answer with the cler of superior courts in the county named above???(union where we do not live?)


This is what you can do for now, other than that you will have to answer the summons and neither confirm nor deny the debt.


?What is the ???Answer??? we are write to the plantiff and the clerk of superior court?

So if it does get dismissed, they will most likely have to refile it in your county, this will take time so you can then set up payments or pay the whole thing off before they file again.

? When do you recommend sending the validation letter?


Also any affidavit is hearsay and for the plaintiff to say you owe the money is not admissible for the fact they where not there to see you use the card, where not there when you signed the contract and probably do not have the original contract.

I looked up the last names for the attorney's and only 2 show up in NC, Smith and Meyers so if you have a first name we can see what law firm they are really from, nothing can be found on the law firm you mentioned so it's probably a basement firm.

? We do not have any information on their first names.

Thank you so much for your help on this matter. As you can imagine it has been a very stressful day.

Thanks again.

OK I will do my best at this....

1. To get this dismissed, I would try calling the court house where they are suing you. Ask them what you need to do to file a motion to dismiss for improper venue. Tell them that they are over 4 hours from you and that the court house in your county is down the street, assuming it is. You may have to type up a legal jargon paper, it's just in court terms which I will post what it might look like after this. Then you would mail one copy to the court and another to the plaintiff's attorney. Also you would include a certificate of service stating how, when where, and what was sent.

You might get lucky and be able to do it over the phone.



2. Yes you would have to respond to the court where you do not live, but again, call them and ask them what your options are because they are suing you in an improper venue.


3. Along with the summons there should be a complaint. It should have a few numbered accusations. 1. would probably be the defendant's name is john doe and used a credit card numbered1234-4456-4567-9876.......the last question probably says you owe a certain amount of money to the plaintiff.

You have to confirm or deny these questions. If they ask for your name confirm it if it's your correct address, confirm it. Anything else that has to do with the debt state "defendant can neither confirm nor deny without sufficient documentation".

When it comes to them saying you owe someone other than the original creditor, Say "Objection, defendant has never done business with or signed any agreement to pay said plaintiff."


4. If you where sent an initial letter from this company and you ignored it the first time then a debt validation letter is pointless. They might answer it but they do not have to obey it. You have 30 days to send one after the initial communication in writing. After that they can sue even if you sent a DV letter after the 30 days.

5. Does it have their BAR number or attorney number in the documents? I find it really odd that the attorney would be listed and not show his or her first name. I doubt that would even be legal.

Best of luck to you and don't forget to call ASAP because if it is a real summons and you do not answer it within the time limit, they might get a default judgment.

Thanks for all the info. Are you saying that I don't need to send the DV letter if they sent me communication and I ignored it. I did ignore it, and I didn't know about DV letters at the time. It's amazing how much we learn after the fact! I've done a lot of reading in 18 months. Anyways, there are no BAR numbers or attorney numbers on it. It is just the same letterhead from the same law office and even the same copied signature as the other letters that I have received.
I did not see a complaint section or any questions regarding a complaint on the summons. Let me know there is anything else I should know. You've been very helpful. I hope to get on this Monday am.
THanks

You can try to send a DV letter, just don't count on them responding. They probably don't have a leg to stand on anyway..


OK Now that sounds really fishy, They have the name of the law firm, correct?

Did an attorney sign this?

So your saying the summons is on THEIR letterhead?

I am almost certain that every attorney needs to post their BAR number on all legal papers, I am pretty sure it's the law.

Is there a docket number on it anywhere? Something like 1234cv2345?

I am starting to think it is a fake summons and if it is then it's a whole new ball game.......

If it is a fake summons then you will need an attorney to sue the pants off of them.

I did find a complaint page. I'll paraphrase:
1. The plaintiff is a state chartered financial institution conducting business in interstate commerse.
2. The Defendant resides in Union County and is neither an infant nor imcompetent. (I do not reside in Union County)
3. The plaintiff provided credit to the defendant pursuant to the agreement annexed hereto as Exhibit A. Def. defaulted on the agreement by failing to remit the required payments as they came due. Defendant owes $xxx according to the affidavit...
4. Because defendant failed to make monthly payments as provided in the agreement the rate of interest that applies to the past due balance on the account is 19.99% per annum.
5. The agreement further provides for the collection of reasonable attorney's fees and will collect pursuant to G.S. 6-21.2 et seq. Defendant has 5 days to pay outstanding principal plus accrued interest and attorney's fees.
WHEREFORE.....Bal due plus 19.99% per annum before judgement and 8% after plus $2535.02 attorney fees.

It is signed by a women (only a copied signature) the same signatue that is on every form letter this collection agency/attorney's office has sent me.
Yes, there is a file no. on the original state of NC summons
08CVD3990.
One affidavit is signed by a Legal placement Account Manager, for DFS SERVICES LLC it says State of Ohio County of Franklin. She swears that she has access to and has reviewed our files from Discover and everything says that we did not pay the amount stated. She also swears that I am a resident of the state and the country in which the action is being filed (not the county but the country)
THe other affidavit is signed by a Collection agent that works for the law firm. She swears that I am not in the military. That's a little more info. Thanks again.

I may not have made myself clear on the point of the summons. It does appear to be an official document from the Union County with a embossed notorized seal.

It is the complaint, and the two affidavits are just copied documents that say on the bottom "this communication is from a debt collector and the purpose of the communication is to collect a debt" they have some wording at the top that says "general court of justice and district court division and a file number" without a file number listed. It is just a copied document that is of poor quality.

Thanks again.

OK This helps a lot. You can hire an attorney to fight them but if you can't afford one I will try to help you the best I can.

This is how you answer the summons, for the first question, who is the plaintiff in this case? I can't really answer that question.

2. Objection, Defendant does not reside in Union County as alleged. Defendant requests this case be dismissed for improper venue. Furthermore Plaintiff has defendants current address and knows full well what county he or she resides in. (If that is the case and state your county that you actually live in)

3. For this question it is very tricky on their part. The defendant is not discover, correct? Also they mention exhibit "A" is this signed by you? If it is not answer with this " Objection, defendant never had an agreement, never made payments and has never contacted plaintiff in any way shape or form. Furthermore Exhibit "A" is not admissible in this case as it is not an original contract of the alleged account bearing the defendants signature. There is no proof showing the defendant and the unsigned credit card agreement have a common bond.

Defendant objects to the affidavit as it is not admissible evidence. Said affidavit is a boilerplate pleading with pre-printed signatures. Furthermore, defendant would feel prejudiced if not stricken from the record as affidavit is hearsay.

4.Objection, As defendant stated before, the credit card agreement in no way shows the defendant is obligated to pay. This contract has a copyright date of (fill in the blank) and Plaintiff alleges account was opened in ( fill in date). Furthermore, without an original signed agreement, contractual fees cannot be imposed such as interest rates, attorney fees and collection fees. This is not admissible evidence and should be stricken from the record.

5.Objection as the defendant stated previously, The credit card agreement provided is not admissible evidence. It does not bare the signature of the defendant, therefore Attorney fees cannot be collected and interest rates quoted cannot be charged, to do so would be unjust enrichment.


The defendant feels that the affidavit submitted by DFS SERVICES LLC and signed by ( put name here) is hearsay. Said person who signed affidavit would need to be present at trial for evidence to have a standing. Defendant would feel prejudiced if affidavits where not stricken from the record.



OK So this is the best I can do. You will need to fill in the blanks and stuff and if you feel you need to change something, by all means do. This is how I would answer the summons. If you want to use this you can. When you send it you will need to send a copy to the court and to the plaintiff's attorney. Send them certified return receipt requested. For the last page you will need to post a certificate of service, and also format it for the courts too, something like this:

"The defendant in this case hereby swears that he (or she) served a copy of Answer to summons and complaint on DATE by USPS Certified Mail Return Receipt Requested and mailed said answer to ADDRESS FOR ATTORNEY."

Type this part at the bottom on the right of the page, do not sign your name as you normally do, just initial it and save a copy of your handwriting just in case they try to forge it.


PRO SE
Name
initials
address
city/state
phone
date


OK so this is long but worth it, hope this helps you.

THANK you so much you have been incredibly helpful.
We'll give it a go.

she was legally served by the sheriiff. the plaintiff is Discover credit card services. I am sure they have all there paper work in order to proceed with there suit.

I was contacted by an Legal Recovery office by phone for my Capital one debt who says if I do not pay now they will sue me a garnish my wages. I had made an arrangement with the collection agency to pay monthly and when I called to ask to who's attention to make the check it had gone to legal. Can the same letter be used to send to a law office?

To the guest 4 posts above me I would like to invite you to become amember here. That was an awesome answer and we sure could use someone like you to help others.

That was me Frogpatch. I either forgot to sign in or I posted that before I remembered my password.

I did call the court and it is a legitmate claim with Discover. I asked the woman how do I proceed with filing a motion to dismiss for improper venue and she said I needed to hire an attorney. What do I do? Can I do it myself? Need help soon.
I am sending the answer to the summons Certified mail this morning to the court and to the law firm/collection agency that is representing Discover.
Any help would be appreciated.
Thanks

You dont need to hire an attorney to file a motion for improper venue. Not sure how to do it but I know people here have done the paperwork themselves.

How do I get the paperwork or what do I do. I really need them to dismiss for improper venue so that I can contact the collection agency to offer a settlement and get the court case dismissed.

I have another question as I am answering the complaint. Even though the plaintiff says Discover and it is being sent by a law firm that has also been acting as the collection agency for Discover- who am I actually paying here? We all know what ever money they get will go to the collection agency right? So when I object to never having had an agreement never made payments and never had contact with plaintiff- I am referring to the collection agency who wants the money? Otherwise what I am saying is not true because yes, I do have an agreement with Discover and I do want to settle with them, but they sold my debt to Smith, Debnam Narron Saintsing & Meyers, LLD out of Raleigh, NC. and now I have to deal with them especially since they are trying to sue me.
Any help here? Thanks

If someone could answer these last two posts it would be really appreciated. I am just not sure where to go from here.
THanks so much

If there is someone out there....I really need to know what kind of paperwork I need to file a improper venue in NC and there are some questions I have about the answer to the complaint? I'm not sure who to believe.

Who does it state as the plaintiff in the case? What exactly does it say? I am guessing it says "Smith, Debnam Narron Saintsing & Meyers, LLD assignee of Discover"

It will help if you could put exactly what it says on the summons.

If you want to file a motion to dismiss for improper venue, you will have to go to your local court house and get the documents there. They will insturct you on what you need to do.

After a little more investigation, I think the planitiff is Discover bank and the law firm Smith, Debnam, Narron Saintsing & Myers LLD is the firm that is representing them. From what I can gather they are a large, legitimate law firm out of Raleigh, and Charlotte NC. They do a lot legal work and one of them is representing banks, debt collectors etc. From what I have learned from all your advice is that I should still deny everything untill I have sufficient documents of proof. The Court house still said twice I needed an attorney to dismiss for improper venue. I have only received two letters from this law firm letting me know that their client, Discover bank would like me to pay than I got the summons. What will happen in court....will I have to pay the whole amount (It's a lot like $16k) plus attorney's fees, and interest etc. I have other debts that I was hoping to settle before they sue me. Sometimes it just takes a while to get the money together to start the process. It's so frustrating when it gets to this stage and you really can't trust anyone. It's all so unpredictable and very unnerving. Thanks for any help you can give.

After doing some investigating I think the plaintiff is Discover Bank. Smith, Debnam, Narron, Saintsing & Myers LLD is representing Discover Bank. They seem to be a large legitimate law firm out of Raleigh, and Charlotte NC. They handle all sorts of legal action including representing banks, collection agencies etc. They are not a collection agency. THey have only sent us two communications regarding the debt we owe their client. I just assumed they were a law firm/debt collector because we have received many other from our other credit cards. From what I gather I still deny everything in the answer to the complaint until I am provided with documented proof. I still say that the two affidavits are hearsay and not admissible evidence. I called twice and the courthouse said that I need an attorney to dismiss for improper venue. I am not sure what to do about that.
What will happen in court after answering the complaint. Does is usually take a while for your case to come up? Will I still be able to settle or will I have to pay the whole amount $16K plus interest and attorney fees. I still have other credit cards to settle before I get sued again. I need to vd the others and they ask for settlement to get this done. It is such an unnerving process. If only I had the money when it was still with the OC's. Any advice you can give would be helpful. Thanks

oops! It didn't post right away so you got it twice. Sorry.

I'm confused about something here. The OP says that they were served by a sheriff at the new address but they are being sued in a county of their old address. If you were served at your new house presumably by the sheriff in the same new town, wouldn't the lawsuit be in the same new town? Seems odd to me that a sheriff from another county would serve you in your new city.

Good question. I don't think a sheriff from Union County NC would drive 4 hours to serve me in Pender County NC (near Wilmington, NC). This law firm sent me a communication regarding a debt with AExp. and they had our correct address on that one. I am not sure how they track you down to issue a summons.

If they say you need an attorney to dismiss for improper venue then there is really not much we can help you with, I wish there was. If you do not know of an attorney you can go to this site and see if one will take on the case. We are always here to answer questions for you so feel free to come back.

http://members.naca.net/findanattorney/

Please tell me what happens when we go to court. Will the judge ask to pay the entire $16k plus interest and attorney's fees. Is that usually what happens? Does the court case usually come up soon after being served? Thanks for all the answers to my questions. There are not too many people who I can ask these questions.

After I answer the complaint is there a way to write the lawyers and tell them I would rather settle out of court.
Just wondering.
Thanks

I need help - please. We were served a summons to court in mid January. About a week later the collection agency P. Scott Lowery called and asked us to set up a payment plan. I agreed to send them $100 on January 31st 2009, $500 on February 13th and then $77 per month after that. On January 23rd we received a Stipulation for Judgement with Order outlining the payment agreement dates, amounts, etc. We had to sign it and send it in. I sent the first payment of $100 in with that letter; they made me overnight the $100 payment. I sent it certified and someone had to sign for it. That cost me an additional $13.99. Lowery office called me on February 3rd stating that they never received the package. I ran the tracking number and it was delivered at 11:51 am January 31st and it was signed by a M. Pugh Jr. I gave Lowery the tracking number so they could see for themselves. They called back a day or two later stating that they still could not find the stipulation letter that we signed and/or the money order; they asked me to fax them a copy of the money order receipt and I did. Our court date was schedule for February 10th and because we had set up these payment arrangements, we didn't go to court. Well yesterday on February 11th we received another letter in the mail telling us that the court date has been changed to March 9th and this letter is for Notice to take Default Judgement. I called and asked them what this letter was for and they said they had to reschedule the court date because they still can't find the money order or the stipulation letter we signed. She asked me to fax her another copy of the stipulation letter as soon as possible. Oh and she also told me that we do not need to go to court on the 9th.

My husband says do not send them another copy of the stipulation letter and do not send any more money. We think we should fill out an answer and go to court on the 9th. In the meantime find out what the SOL is on this debt. We were never told that the court date would still continue even after a payment arrangement had been made. We had the understanding that once a payment arrangement is made, all court proceedings stop.

Please, any advice would be greatly appreciated!!!

APPEAR IN COURT, they are trying to get a default judgement against you!

I've read this with interest because I just received the same package regrding my Discover Card account from Smith Debnam, et al yesterday. At first I wrote a long letter with a different tone then I found your first letter here on this website and I'm planning to send them the DV letter instead. It sounds as though this has not been very successful for you, however, since you say you are headed for court.

First off, just to make you aware, Smith Debnam is most definitely not a "basement firm". It is one of the largest collection firms in North Carolina. The firm can sue in the county you live or where the transaction took place. if you received the credit card at the address and county that they used originally for the venue then you are wasting time filing a motion to dismiss, and when that motion is heard, not only will it be denied but a judgment may be entered against you at that time.

You can call and make payment arrangements and consent to a judgment. Once the judgment is entered your rate drops from the contractual rate of interest to 8%. In most cases your payments to the collection firm will be much more manageable then the ones that Discover required before the suit.

If you own RP joint with your spouse and you are both on the credit card the judgment will become a lien on your house. You need to learn about the exemption laws in NC and what can be levied against. The laws just changed in December. Go to the court and ask for a Motion to Claim Exemption form and read it.

If you call them when you get the pre-litigation letter they will work with you, in my experience. I got my letter this past Friday on a debt of $4395.49, called them yesterday and asked them if they had authorization to negotiate a settlement and in fifteen minutes it was done. I overnighted them a cashier's check for $2640.00 and they faxed me the settlement letter. These guys are tough but I feel that I was treated very fairly. I would NOT wait until a summons came to try to work out a settlement, a timely response is key, imho.