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Help, how do I answer summons....

Date: Wed, 08/20/2008 - 16:48

Submitted by anonymous
on Wed, 08/20/2008 - 16:48

Posts: 202330 Credits: [Donate]

Total Replies: 36


Here are the questions:

1. That the addresses for the plaintiff and defendant are shown above.

2. That the defendant applied for a credit card and thereby entered into a contract, and that the pursuant thereto the defendance were issues a credit card which is the subject of this action.

3. That the plaintiff is the current holder of said credit card account, and the plaintiff has performed all it obligations under the contract, but the defendance has defaulted by failing to make the payments due thereon.

4. That the obligation of the defendant to the plaintiff is a marital obligations in that the goods and services purchased through the use of the credit card any any monies obtained were used in the interest of the marriage or the family of the defendant.

5. That any required notice to cure default was given to the defendant, that the defendant failed to cure the same, and that the plaintiff has declared the entire balance of said account due and fully payable.

6. That accurate copies of the writings evidencing defendan'ts obligation will be submitted to the court and defendant upon receipt of defendant's written request therefore on or before the return date or the date on which the answer is due.

7. This is an attempt to cllect a debt and all information obtained will be used for that purpose.

8. That the balance due from the defendant to the plaintiff is calculated below.

As and for a second cause of actions, plaintiff alleges and shows to the court as follows:
9.
Realleges and incorporates as if fully set forth herein each of the allegations of the plaintiff's first cause of actions.

10. That the buyer-defendance was provided with a statement of said account indication the balance due thereone, and the buyer-defendant retained said statement without making objection thereto within a reasonable time and/or make a partial payment on said balance due.

11. That the defendants failed to pay the amounts set forth on those statements and there is a balance due the plaintiff from the defendant in the sum of x, and that, although the plaintiff has made demand upon said defendant for the payment of aforesaid sum, the defendant has/have failed and neglected to pay same.

I need help on how to answer these and is there a certain form that the response needs to be made on?

This should have all been handled through James Lombardo, but wasn't.


Find out if the account is out of statutes of limitations first or not. If it is out of SOL then you can use that as your defense.

If you call up the courthouse the summons was filed through, they can tell you how to respond as well. The clerk can't provide legal advice, but can guide you on the proper way to answer.


lrhall41

Submitted by on Wed, 08/20/2008 - 16:53

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Bummer about that lawyer, don't they all just suck?

Check that you're in small claims before using those forms. You didn't say how big the debt was, if it's large you may be in general jurisdiction (or "unlimited" as we call it here in Cal.). The rules almost certainly vary.

Then find out whether you can make a general denial, which is basically "defendant generally denies all the allegations of the complaint." There's probably a form for this, and if so that's what you want.

Finally, on the answer form you want to list any defenses that apply to your situation, such as standing, statute of limitations, etc.

BTW, most judges cut pro se plaintiffs lots of slack. They know what you're up against.

Finally, if there's considerable money involved, consider looking for a pro bono office in your area. Also, the Nolo Press has excellent information about how to handle your own lawsuit.

Best wishes.


lrhall41

Submitted by on Wed, 08/20/2008 - 20:27

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Quote:


Wisconsin

One lawyer I contacted wants a $1,000 retainer fee and $200 per hour. Yikes, can't really afford that right now.

Unfortunately this is why lawyers are not very useful for debt settlement many times unless you can find really cheap or free service. For example, if you owe 5k and a lawyer works 5 hours on it then the lawyer would cost you 2k on a 5k debt or 40% of the debt. The lawyer would have to settle for less than 2,500 or 50% to even break even after taxes. If the debt is not time barred and the creditor/CA can easily validate then it is pretty good odds that they will get a judgment with or without a lawyer.

I think your options here are either try to settle prior to the hearing or be forced to take a judgment at the hearing. If you know you will lose then you might consider a settled in full offer around 50-80% if you have some cash or offer a payment plan that you can afford if you don't have lump settlement money. I would write on paper a full budget showing where all your money goes in the payment plan offer. You can also use that as evidence in court to maybe get leniency at the garnishment hearing assuming they get a judgment. I don't know a good way to answer the summons but the general denial suggestion seems decent.


lrhall41

Submitted by DOLLARSandSINCE on Thu, 08/21/2008 - 07:39

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Five hours of work at $200/hr is 1k. Time should be billed against the retainer.

Furthermore, I can't imagine how an ethical, competent attorney could spend five hours settling a 5k collection case.

(Realizing, of course, that to many in here, "ethical, competent attorney" constitutes an oxymoron.)


lrhall41

Submitted by on Thu, 08/21/2008 - 08:02

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Well unfortunately math, attorneys are expensive. The last one I worked with cost me $250 just to get a simple settlemet letter that took maybe 10 minutes for him to write. Just think about that hourly rate for a minute. I could also see a lawyer easily billing for 5 hours unless this thing never makes it to court. I would think a lawyer would automatically charge 1/2 day work just for showing up in court. Even if I am off but 50% that is still 1k OOP which is 20% of the debt. That is a lot of wasted money especially if you don't have a defense anyway.


lrhall41

Submitted by DOLLARSandSINCE on Thu, 08/21/2008 - 08:25

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I am being sued for a debt that I am almost 100% sure is past the SOL in my state. My problem is that I lost all my records in a fire 8 years ago and have no real Idea what the date of the last payment was. I hope to use that, the SOL has run out as a defense. How would I go about finding out that date?


lrhall41

Submitted by on Thu, 08/21/2008 - 17:13

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Newport,

When does the Statute of Limitations start?

You might be asking yourself, "It has been such a long time since my "open account" has had any activity. When does my Statute of Limitations started ticking." The statute of limitations (SOL) is calculated by:

1. Take the date you last made a payment and add 6 months to this date.
2. Add the number of years of the statute of limitations in your state.

Example:
You last stopped paying on a credit card on Jan 15, 2001. The statute of limitations for credit cards (usually regarded as open accounts) in your state is 6 years.

The date at which you are "safe" from having a creditor sue you over this debt is:

Jan 15, 2001 + 6 months = July 15, 2001.
6 Years + July 15, 2001 = July 15, 2007

Therefore, a creditor cannot sue you for this debt after July 15, 2007.

Depending on what state you live in, if you make a partial payment, you could be postponing the Statute of Limitations' taking effect on your collection account or charge-off. A collector might call you one day and say you waived your rights when you made a deal with the collection agency. Do not take anything a collector tells you for granted. Make them prove it to you, in or out of court. For about half the population, the Statute of Limitations started ticking the day they made the last payment for their account.

What state should I use in figuring out the Statute of Limitations?

the fdcpa applies, and so the only relevant jurisdictions are where the consumer signed the loan application and where the consumer currently lives (bank location is irrelevant). If those states are different, I believe the creditor has the choice of where to sue and can select the state with the longer SOL. There may also be an argument that the contract was signed "under seal" which might lead to a longer Statute of Limitations than an ordinary contract.

Summation:

Even though a debt is an absolute promise to pay, if the Statute of Limitations expiring is in force and the creditor tries to force you to pay the debt, you have the right not to fulfill the promise (debt).


lrhall41

Submitted by on Thu, 08/21/2008 - 19:39

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Newport,

Why should you care about the Statute of Limitations (SOL)?

Every day, consumers pay off collection accounts and charge-offs which they do not have to pay off because the Statute of Limitations has already expired for the open account. Consumers pay off these accounts because the accounts still appear on their credit reports.

This information can be a powerful weapon in unburdening yourself of old debts, as creditors have a limited time in which to sue you. Remember: the Statute of Limitations begins to run from the day the debt - or payment on an open-ended account - was due. Also, this has nothing to do with how long an negative credit item can remain on your credit report.

Consumers also pay off these accounts when they are not on their credit reports. Even though an account was removed from their credit file, a collector watched their credit report for any activity (actually the computer was watching any credit activity). When the collector spotted the activity, he called the consumer for payment. All the consumer needed to say to the collector was, "I have an absolute defense--the Statute of Limitations has expired."

The Statute of Limitations does not cause your debt to go away after it expires. If the creditor files suit, the consumer has an absolute defense. The consumer must offer the new evidence to avoid a judgement. The evidence will consist of papers the consumer files to support his claim. If the creditor sues you, and you do not prove to the court that the Statute of Limitations expired, you will have a lost lawsuit and a judgment against you.


lrhall41

Submitted by on Thu, 08/21/2008 - 19:41

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Nascardevil - Is it date of last payment or date of first default? If the last payment I made was on time (say June 15) and then 30 days later I stopped making payments, does the SOL in Texas start July 15 (the date the next payment was due) or June 15 (date of last payment).

Thanks


lrhall41

Submitted by on Fri, 08/22/2008 - 07:11

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I always thought it was date of last payment as reported on your credit report. That is why you need to watch for reaging. It would be nice to have a larger cushion than 30 days though which I think is what Jedi was implying. Basically you could go in front of a judge and use the SOL as a defense when a debt is 1 day past the time period but it would be a lot more risky than if the debt was 3 months passed the SOL.


lrhall41

Submitted by DOLLARSandSINCE on Fri, 08/22/2008 - 07:24

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I agree with your point about the cushion. From a technical POV, it seems as though the date of last payment (if minimum required payment was made) would keep you in good standing. You have not triggered default until you missed the next payment due (or did not pay it in full). Hopefully, I won't get to the point where I have to test that defense ... but it would help me sleep a little easier ;)


lrhall41

Submitted by on Fri, 08/22/2008 - 08:03

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Quote:

Nascardevil - Is it date of last payment or date of first default? If the last payment I made was on time (say June 15) and then 30 days later I stopped making payments, does the SOL in Texas start July 15 (the date the next payment was due) or June 15 (date of last payment).


Date of First Default (DOFD) - when your next payment is due and not made, starts the federal Credit Reporting time period of 7 years + 180 days. In your example 7/15. Date of Last Payment (DOLP) is when the SOL clock starts ticking. In your example 6/15. In TX it's 4 years accross the board for consumer debt. Judgement SOL is 10 years and renewable for another 10. Also, in Texas, only a written acknowledgement and promise to pay from the consumer will reset the SOL. If 08/04 is when you defaulted, and you have never made another payment, then your SOL should have expired.


lrhall41

Submitted by NASCAR_Devil on Fri, 08/22/2008 - 08:22

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In reference to answering the complaint? No code reference but your answers should be in the proper format. Here is a link to TX Civil Practice and Remedies (RCP)

http://tlo2.tlc.state.tx.us/statutes/cp.toc.htm

SOL is an affrimative defense only and you will have to provide the documentation to back it up but your answer to the complaint would be something like this:

Defendant alleges that this action is time-barred under ????16.004 of the laws of the State of Texas.


lrhall41

Submitted by NASCAR_Devil on Fri, 08/22/2008 - 08:41

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Denial

Pusuant to the provisions of Section 431.30 of the California Code of Civil procedure, this answering defendat denies generally and specifically each, every and all of the allegations in said Cross-Complaint, and the whole thereof, including each and every purpoted cause of action contained therein. The answering defendat futher denies that plantiff has or will sustain damages in the amount alleged or in any amount whatsoever.

Affirmative Defenses -Payment in Full

That said debt has been paid in full by the defendants. As such, in bringing this action, the Plantiffs have failed to set forth this information. Plantiffs recovery therefore against this answering defendant should be completely barred.

Affirmative Defense - Laches

That the plantiff failed to timely and legally assert any right they may have under law and that their failure to do so is a complete defense to their claim.

Affirmative Defense - UNFAIR,ILLEGAL,DECEPTIVE Business Pratices

That the business practices engaged in by the Plantiff in regards to this defendant did not create a valid security agreement and that the plantiffs right to recover any alleged secured items does not extend to items which are no in the defendant's possession is an unfair, illegal, and deceptive business pratice.

Affirmative Defense - Falure to Mitigate

The plantiff has failed to exercise reasonable care and diligence to avoid loss and to minimize damaged and, therefore, plantiff may not recover for losses which could have been prevented by reasonable efforts on their own part, or by expenditures that might reasonably have been made. therefore, plantiffs recovery, if any, should be reduced by the failure of the plaintiff to mitigate their damages.

This answering defendant prays that plantiff take nothing by way of their complaint on file herein, that judgement be entered in this action in favor of this answering defendants and against the plantiff upon the issues of the complaint, together with an award to this defendant attorney's fees and costs of suit herein incurred, pusuant to statute and contract and such other and further relief as the court deems just.



I sent this in and they backed off big time... GOOD LUCK! Anonymous helper!


lrhall41

Submitted by on Mon, 09/01/2008 - 18:15

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Denial

Pusuant to the provisions of Section 431.30 of the California Code of Civil procedure, this answering defendat denies generally and specifically each, every and all of the allegations in said Cross-Complaint, and the whole thereof, including each and every purpoted cause of action contained therein. The answering defendat futher denies that plantiff has or will sustain damages in the amount alleged or in any amount whatsoever.

Affirmative Defenses -Payment in Full

That said debt has been paid in full by the defendants. As such, in bringing this action, the Plantiffs have failed to set forth this information. Plantiffs recovery therefore against this answering defendant should be completely barred.

Affirmative Defense - Laches

That the plantiff failed to timely and legally assert any right they may have under law and that their failure to do so is a complete defense to their claim.

Affirmative Defense - UNFAIR,ILLEGAL,DECEPTIVE Business Pratices

That the business practices engaged in by the Plantiff in regards to this defendant did not create a valid security agreement and that the plantiffs right to recover any alleged secured items does not extend to items which are no in the defendant's possession is an unfair, illegal, and deceptive business pratice.

Affirmative Defense - Falure to Mitigate

The plantiff has failed to exercise reasonable care and diligence to avoid loss and to minimize damaged and, therefore, plantiff may not recover for losses which could have been prevented by reasonable efforts on their own part, or by expenditures that might reasonably have been made. therefore, plantiffs recovery, if any, should be reduced by the failure of the plaintiff to mitigate their damages.

This answering defendant prays that plantiff take nothing by way of their complaint on file herein, that judgement be entered in this action in favor of this answering defendants and against the plantiff upon the issues of the complaint, together with an award to this defendant attorney's fees and costs of suit herein incurred, pusuant to statute and contract and such other and further relief as the court deems just.



I sent this in and they backed off big time... GOOD LUCK! Anonymous helper!


lrhall41

Submitted by on Mon, 09/01/2008 - 18:15

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