Served a summons...now what?

In order to answer the summons you need to go to the county court house, Circuit Civil division, and get an answer form from the clerk. Fill out the form, and put down all the information you have about the car debt, and attach copies of any documents you have to evidence the agreement. Then make copies. One for yourself, one for the clerk and one for the other party. You should mail the other party's copy to them certified mail. If you have problems, go see if Lake County has a general pro se help desk, which I would recommend to be sure you're filing correctly, just ask the clerks. If you want more information, you can go to www.lakecountyclerk.org.

You need to ask for proof of the debt in discovery...see how they came up with the total.

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Can Blatt lawfirm continue to call me after I was served with a summons? They have been calling a lot for the past few days.

They should not be calling you multiple times. The FDCPA says that they can only call you from 8am-10pm central time in your case and can't call you over and over. Next time they call mention the FDCPA.
If Lake County's general answer to a complaint is anything like Cook County's (and to be fair it might not be) deny the paragraph that states the debt amount. This should force the creditor to have to prove to you and to the court what the debt amount is.
A good place for Indiana specific questions if Lake county doesn't have a pro se help desk at the courthouse is www.lawguru.com. It's a site where people can ask specific legal questions to a lawyer from their state for free.

OVLG, thanks for posting that site! www.lawguru.com Many people have been looking for a free site! Everytime I have tried to get advice for someone I get something like "my fee to answer that question is 25.00" It has been frustrating! Thanks again! I am going to put that in my signature link or on a sticky!

It's a JDB that is suing you. The OC sold off the account to Equable.

You need to learn your state's Rules of Civil Procedure to find out about discovery, answering the summons, etc.

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Be sure you check your states rules of civil procedure to find out how to go about filing a motion for discovery...different states have different ways. You want this company to prove you owe the debt and that they are the rightful ones to collect said debt.

I checked with the court clerk. There is no answer form for me to fill out. I was told just to type out a response to answer the summons. I am trying to find the right template where I can word my response to ask for verification of the debt owed because I do not recall owing that much? Please help?

Ok what state and county are you in? I can go look up your rules of civil procedure and see if there is specific rules for filing a motion of discovery. As for your answers, can you post what the papers say, with any personal information Xed out and we can help you formulate your answers. Generally you just format your answers how the summons was formatted.

Also be sure to object to the affidavit as hearsay.

Lake county, Indiana.

Complaint

Comes now the plaintiff, Equable Ascent Financial, LLC, by counsel and for its claim for relieft against Defendant(s), M. L. R. alleges and says:

1. Plaintiff is authorized to do business in the State of Indiana and the Defendant(s) is/are a resident of the COUNTY OF LAKE, Indiana
2. The defendant(s) opened a charge account with Wells Fargo Financial, INC agreeing to make monthly payments as required by the terms of the Charge Agreement, for purchases charged to the account
3. Plaintiff is the assignee of said account from Wells Fargo Financial, INC having purchased said account in the regular course of business in good faith and for value
4. The defendant did make purchases and charged same to the account, but the Defendant(s) failed to make the monthly payments called for on the account. There is an balance due and owing in the amount of $15008.08. See Client Affidavit as Plaintiff's Exhibit No.1
5. Plaintiff, declared defendant(s) to be in default and demands payment of the balance.

Wherefore, the plaintiff prays for judgment against defendant int he amount of 15008.08 plus costs and interest at the rate of 8% per annum, pursuat to IC-24-4.6-1-101

The plaintiff's evidence is just a piece of paper being sworn in Illinois court that I owe this debt (no valid contract or paperwork) I can scan it and post it with info x ed out.

Thanks so much...as the time goes on I get more angry. I NEVER had a correspondence with EQUABLE.

That is worded really strangely for an auto loan...specifically #4, makes it sound like a charge card....it states you made 'purchases' and 'charged'...an auto loan would be a single purchase wouldn't it?

I will get started working up some answers you can use and will look up your rules of civil procedure to see how you go about filing a motion for discovery.

Here is Indiana court rules if you want to also research:

http://www.in.gov/judiciary/rules/

Ok here is some basic info:
In the small claims rules (I assume this is a small claims case)
Rule 2 (B) (4)
A brief statement of the nature and amount of the claim; and
(a) if the claim arises out of written contract, a copy shall be attached; however, the fact that a copy of such contract is not in the custody of the plaintiff shall not bar the filing of the claim; and
(b) if the claim is on account, an itemized statement shall be attached;

Now they didn't attach either did they? Just the affidavit? Heh this will be good for:
Rule 6. Discovery
Discovery may be had in a manner generally pursuant to the rules governing any other civil action, but only upon the approval of the court and under such limitations as may be specified. The court should grant discovery only upon notice and good cause shown and should limit such action to the necessities of the case.
I am not sure how one would give notice to the court...so my guess would be is to go ahead and write up the motion for discovery due to the fact that the plaintiff did not attach either a statement nor a contract to the claim. If worst comes to worst you can ask the clerk how you go about giving notice to the court or gaining approval.
Rule 8
(B) Witnesses. All testimony shall be given under oath or affirmation. Witnesses may be called and the court shall have the power to issue subpoenas to compel their attendance. There shall be no additional fee charged for the issuance of subpoenas.
This is golden! In the answer you can object to the affidavit as hearsay or ask that a subpoena be issued for this individual as it is your right to question this person as to the authenticity of their claims!

This is some good stuff so far.

Rule 13. Small claims litigant's manual
An informative small claims manual shall be formulated by the Judicial Conference of Indiana for distribution to the small claims courts. Each county shall reproduce such manual and shall make it available to every litigant and to such other persons or organizations as the court may deem appropriate.

[COLOR=black][/COLOR]
Hey! You should see if you can grab a copy of this! Be very useful!

NVM here ya go: I found a pdf of the small claims manual:

http://www.in.gov/judiciary/pubs/handbooks/small-claims-manual%282005%29.pdf

It is a 2005 copy so not sure if it is the latest or not.

Oh I just saw that small claims is 6k or less...since they are suing for 15K it must be in another court. I'm looking into it..does your summons say which court? Shoot..I was finding good information for small claims.:rolleyes:

Ok here is a working answer for the others here to look at and comment...still working on it and I dunno if you want to actually file any counterclaims...I think I can find a few in FDCPA.


Comes now the defendant, <<< your name >>>, appearing pro se for it's reply to Complaint naming Equable Ascent Financial, LLC, Plaintiff as follows: All answers correspond to the numbered paragraphs of the Complaint(s). All allegations of the Complaint(s) are denied unless expressly admitted herein. :


ANSWERS
1. Defendant is without knowledge or information sufficient to form a belief as to the
truth of the averment.
2. Defendant is without knowledge or information sufficient to form a belief as to the
truth of the averment.
3. Defendant is without knowledge or information sufficient to form a belief as to the
truth of the averment.
4. Defendant is without knowledge or information sufficient to form a belief as to the
truth of the averment. Defendant objects to Client Affidavit Exhibit No. 1 as hearsay.
5. Deny.
DEFENSES
1. Equable Ascent Financial, LLC, has not proven it is the real party in interest. Defense demands proof of ownership.
2. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.
3. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.
4. Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.
5. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.
6. Plaintiff???s Complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.
7. Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.
8. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

COUNTERCLAIMS

Is it just me or does the summons look VERY bare? Nowhere is it stating that the defendants name is what it is, and what about all that 'charging' and stuff? It is almost like this company got this account crossed with a charge card...its just..weird...

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I have attached a scanned copy of affidavit for you to review. Let me know what you think?

Attached is a scanned copy of complaint

for some reason I can't see these thumbnails can you message them to me?

NVM I can see it now. I just love how an employee of Equitable can say they have personal knowledge of this account when it sounds like they don't even know what kind of account this is! I will work that little bit into your answer....plus I am gonna look into a motion to strike said affidavit :)

Hey I found this under rule 12

When a motion to dismiss is sustained for failure to state a claim under subdivision (B)(6) of this rule the pleading may be amended once as of right pursuant to Rule 15(A) within ten [10] days after service of notice of the court's order sustaining the motion and thereafter with permission of the court pursuant to such rule.

My understanding is that you can file a motion to dismiss based on the above rule (failure to state a claim) AND Rule 9.2. Pleading and proof of written instruments (A) When instrument or copy must be filed. When any pleading allowed by these rules is founded on a written instrument, the original, or a copy thereof, must be included in or filed with the pleading. Such instrument, whether copied in the pleadings or not, shall be taken as part of the record.


Now what I am not sure on is if you can just file this motion to dismiss based on a failure to state a claim and failure to attach a copy of the written instrument this suit is founded upon. Indiana trial rules 9.2 plainly states written instruments need to be attached.

More than likely though, the judge will simply tell the plaintiff to supply the required documents. You could still try it, and the worst that would happen is that the judge would deny your motion to dismiss and make the case proceed....at which time you would then move that the court grant discovery.

The motion to strike affidavit is not that hard. I actually helped someone come up with a rather good one not too long back. Let me see if I can find it, and I will post it up here....ok, here goes:

[QUOTE]
(put name of court here)
Case No. (put case # here)
(plaintiff's name)
Plaintiff
vs.
(your name)
Defendant

MOTION TO STRIKE AFFIDAVIT

Comes now the defendant, pro se, and makes request that the court strike the affidavit entered by plaintiff as "exhibit A" from these proceedings.

1. Plaintiff has submitted into evidence an AFFIDAVIT IN SUPPORT OF PLAINTIFF'S CLAIM (hereinafter referred to as "Affidavit").

2. Plaintiff has provided no evidence to support their claim that they are the owner of said debt. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

3. Said Affidavit pertains to acts and events that allegedly occurred between Defendant and the original creditor, which plaintiff has identified in their complaint as Wells Fargo Financial. Plaintiff is clearly a third party and not the original creditor by their own admission.

4. At no time was the creator of the Affidavit, or any of Plaintiff's employees, present to witness any alleged acts or creation of the records of any alleged transactions between Defendant and the original creditor.

5. As such, said Affidavit falls under the hearsay rule and is inadmissible as evidence.

6. Defendant further states that the Affidavit is not subject to the Hearsay Business Records Exemption because it was not made at or near the time of the alleged acts or events.

7. The information contained in the Affidavit is merely an accumulation of hearsay.

8. Upon information and belief, the creator of the document is not currently and has never been employed with the original creditor, and therefore cannot possibly have personal knowledge of how said original creditor's records were prepared and maintained, and is unqualified to testify as to the truth of the information contained in the Affidavit.
WHEREFORE, the Defendant prays this Honorable Court that Plaintiff’s Affidavit be stricken from evidence in the above action.
Respectfully submitted this day, (date here)
(your name here)
Defendant
I CERTIFY that I mailed a copy of this MOTION to: (attorney's name here)
(attorney's address here)
Plaintiff's attorney at the above address
By:(your name), Defendant Date:
[/QUOTE]

That one worked in the case we prepared it for--the plaintiff didnt even bother trying to fight it.....of course, golden, if you could work in some case law relevant to the jurisdiction regarding the fact that it is the actual records themselves, and not testimony about what the records contain, that is admissable in court....that would only make it stronger.

Getting ready to get my response typed this morning. Should I change or add something to the answer form below? I really appreciate all the help I am getting. I will definitely keep you all posted of this lawsuit progress, that is the least I can do for you all because of all your help! :) Quote:

Wow, thanks so much! I will definitely use it and keep you all posted. :) Quote:

Great Motion to Strike!!

Ok here are some counterclaims you can add to your answer:

1. Plaintiff violated the Fair Debt Collection Practices Act ? 808.(1) which plainly states the plaintiff was not to use any unconscionable mean to collect the debt by not collecting any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law. Plaintiff has never produced such an agreement.

2. Plaintiff violated Fair Debt Collection Practices Act ? 809. by never attempting to communicate with the defendant which circumvents defendant's right to dispute the alleged debt as allowed by federal law.

Defendant prays for judgment on the plaintiff in the form of $1000 as per Fair Debt Collection Practices Act ? 813.(a)(2).


~~~~~~~~~~~~~~~~~~~~
You should take a copy of the FDCPA with you in case the judge doesn't know it..my judge didn't even know our own state's debt collection laws :)

Remember you need to have 3 copies! One for you (have court stamp it) one for the court and one you need to send to the plaintiff attorney. :) I bet they are gonna brown their trousers when they see that you are not only fighting the suit, but have brought a few claims against them! Even if you don't get awarded the claim (you have a pretty good case against them so you may get $1000 out of this) but also you are costing this company a small fortune by making their lawyer have to work harder. :)

Answer your summons and request Validation of Debt, proof of ownership, date of last transaction, proof of ownership of debt from 3rd party and request a copy of the sale of your debt.

Read your summons/complaint carefully, I had 4 violations and was ready to counter sue them. I reported both Forster & Garbus & LVNV Funding to FTC and NYS Attorney General. Take them to task and do not settle if the debt is not yours and if it is I understand there is the Statute of Limitations - Different for every state, but you can just do a search on it and read the Fair 1 and your states consumer rights protections.

I also checked the BBB on both and came up with complaints as well as file a complaint.
I was ready to tear them apart I had so much knowledge at my fingertips, but my case was dismissed when I would not take the settlement they offered...why would you want to settle a debt that is not yours? If your statute of Limitations (SOL) is up...do not restart the clock again by making any payments or settle for anything. The debt can be dismissed as Time Barred and though it can be collected, they can not get a judgment & take money from you. Also if you have anything on your credit report dispute it and request validation in writing with certified proof it was sent. Do not talk to these people on the phone, if they have a Phantom Debt or anything they will send a summons/complaint and then you will have your chance to defend yourself.
1.) Answer your Summons./Complaint - usually to Attorney or Collection agency
2.) Read it carefully for violations
3.) Call your city or town clerk and ask them for directive, do it and wait
In the meantime educate yourself!! It is hard to remain positive no matter how much information you have, it's up to the Plaintiff to prove you owe the debt, but knowledge is your friend.
Report your issue to the Federal trade Commission and your State's Attorney General and the BBB.
Good Luck!!!

I'd like to update everyone. :) The certified mail with returned receipts are sent to my court judge and the plaintiff's attorney. (I called the clerk of court and was told to mail in my answer to the summons/motion to strike affidavit).

I will update further once I hear something. :) Thanks for all your help. I am feeling opitismitc (can't spell today sorry :P) and know I can get through this.

Great! be sure to keep us updated!

Another update: I received the green card verifying the court got my paperwork. I am still waiting on the green card from Blatt, Hassenmiller, llc law office.

Another update:

Reviewed my online court docket to see what the status is (this is the latest update from the court...so all is good regarding the court receiving my answers, motion to strike)
Mail: FILED IN CLERK'S OFFICE 05-11-10 BY CERTIFIED MAIL. REC'D 05-12-10. DEFT., APPEARING PRO-SE, SUBMITS ANSWER AND MOTION TO STRIKE AFFIDAVIT. JM

I still have not received the green card from the plaintiff attorney. Should I be worried that they didnt get my certified mail or just let it go?

Give it a little more time and you can always check to see if they got it.

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Ok, I received a thick enevelope by Blatt, Hasenmiller, Leibsker with copies of new paperwork filed in the Court.

First page filed in Superior Court stated Motion to Dismiss.
Summarized:
Comes now Equable Ascent Fnancial, LLC, plaintiff int he above captioned cause, by and through its counsel, "attorney's name" Blatt, Hasenmiller, Leibsker and Moore LLC and files its motion to dismiss, the Defendant.

Wherefore, Plaintiff respecfully requests this court to dismiss this cause of action without prejudice.

Ok...what does this mean? They dropped my case?

It means that the case has been cancelled (dismissed) but reserve the right to attempt to sue you again in the future. (without prejudice)

I would be checking with the courts just to make sure.

Thanks SOAPLADY.

I checked with the court today and it is verified the motion to dismiss was filed yesterday. All I have to do is wait for the judge to sign the order to dismiss and I am free to go for now. Until they decide to sue me again.

Another update:

I received mail from the plaintiff's law firm (Blatt) new copies that Plaintiff files Motion to Dimisss without Prejudice. Now there is a note added (handwritten) that Motion Set for Hearing on the 1st day of July. I checked the online court docket to verify. It is verified that there is a hearing set for July 1st 2010....no new info but motion to dismiss without prejudice with a motion set for hearing. What does that mean?

Please help? Can anyone answer my questions?

As a general rule debt collectors aren't authorized to take your car--or any of your property, for that matter-- UNLESS they have gone to court, sued, and won a judgment against you. Afterwards they can take certain items of property from you. Certain pieces of property are "exempt," and the exemption rules vary from state to state.There are cases that creditors can simply repossess your property, especially if you put your car up for security on the debt--this is what's called turning an unsecured loan to a secured loan. This is called a "security agreement," which means that if you default on your payments, your creditor is entitled to secure property to serve as payment for the unsettled debt. Of course this can only occur only if you have signed that agreement--upon doing so, the creditor has the legal right to confiscate your car when payments are missed.

When you are served with a summons, should a copy of the original application, or an affidavit of sorts, or anything stating the account number in question be included? I received a summons and complaint, but it makes ZERO reference to any account number anywhere on the papers. So I cannot be certain what it is for, even though I may have an idea. Could that be used somehow in my answer to the summons? Please advise!

Saphiredreams, it appears the court wants a hearing on the motion to dismiss. It might also be possible that the court set your motion to strike before the motion to dismiss was filed. Contact the clerk and ask which motion is set for a hearing. In my experience a court will sign the order for a motion to dismiss without a hearing. Hope this helps.

[QUOTE=Anonymous;707134]When you are served with a summons, should a copy of the original application, or an affidavit of sorts, or anything stating the account number in question be included? I received a summons and complaint, but it makes ZERO reference to any account number anywhere on the papers. So I cannot be certain what it is for, even though I may have an idea. Could that be used somehow in my answer to the summons? Please advise![/QUOTE]
I think it can definitely be used in some way.

If my credit reports shows that the original creditor reported bad debt and then a 3rd party firm bought the debt ( at pennies on the dollar) now have the right to say I now owe them the original amount?