Summary: I'm being sued by debt collector, and I need guidance on Answer in response to Complaint by 5/2/2019. Questions at the very bottom. Thank you.
1. Who is the named plaintiff in the suit?
2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
M&J LLP asserting they are attorneys for Plaintiff Discover Bank
3. How much are you being sued for?
~$7K (I have several other similarly sized credit card debts I anticipate similar Complaints for)
4. Who is the original creditor? (if not the Plaintiff)
5. How do you know you are being sued? (You were served, right?)
Served a Summons & Complaint April 2019
6. How were you served? (Mail, In person, Notice on door)
7. Was the service legal as required by your state?
Yes, I think so.
8. What was your correspondence (if any) with the people suing you before you think you were being sued?
I previously wrote them sometime in 2016 with an offer-in-compromise of 10% of outstanding balance, and again with the same offer after receiving Summons in April 2019. I have never received a response. They called recently, and left a call-back message, but I have not returned the call. I have since learned that I don't know if they are legitimately entitled to anything due to various Affirmative Defense reasons.
9. What state and county do you live in?
El Paso County, Colorado
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
Last Pay Date - Oct 2015
11. What is the SOL on the debt? To find out:
12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).
Summons/Complaint for Money Due - Dated 3/19/2019
Served Summons/Complaint - April 2019? Not sure exactly.
Complaint Answer Due - 5/7/2019 (but I'll be out of state and so must file by EOB 5/2/2019)
13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
No. Debt was "Charged off as bad debt. Profit and loss write-off” by Discover in April 2016 (per my credit report).
14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.
15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?
I must respond to Complaint by 5/7/2019.
“1. Venue is proper as Defendant resides ...
2. The amounts the Plaintiff claims from the Defendant are $xxxx which represent the liquidated balance of the Defendant’s credit car account owed by Plaintiff, less credits of $xx, plus court costs.
3. The Plaintiff’s claim arises from the Defendant’s failure to pay the liquidated balance due on credit card account xxx as required by cardholder agreement. The Plaintiff claims the right to recover from the Defendant under one or more of the following legal theories: Breach of Contract, Liquidated Debt arising out of a Contract under C.R.S 5-3-304, or Unjust Enrichment.
4. The Plaintiff request interest on any judgment entered on the Plaintiff’s claims in this case to accrue at the rate of 8% per annum compounded annually fro the date of the judgment, pursuant to C.R.S. 5-12-102.
5. The Defendant is not a minor ...
6. The Plaintiff does not demand a trial by jury.”
16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
a copy of the Complaint;
the last credit card statement before the account was closed;
a stock fine-print copy of the Cardmember Agreement (no signatures);
an ANSWER form;
their contact information & payment information.
I've since learned I need to file an Answer by 5/7/2019, with admit, deny, or lack of knowledge for each of their numbered allegations (but I'll be out of state and so must file by EOB 5/2/2019). Here's my draft response:
In answer to paragraph 1, Defendant admits he resides at the stated address, but lacks knowledge to admit or deny the allegation of whether this is the proper venue, and therefore Defendant denies the allegations.
In answer to paragraph 2, Defendant lacks knowledge to admit or deny the allegations, and therefore Defendant denies the allegations.
In answer to paragraph 3, Defendant lacks knowledge to admit or deny the allegations, and therefore Defendant denies the allegations.
In answer to paragraph 4, Defendant lacks knowledge to admit or deny the allegations, and therefore Defendant denies the allegations.
In answer to paragraph 5, Defendant admits the allegations.
In answer to paragraph 6, Defendant lacks knowledge to admit or deny the allegations, and therefore Defendant denies the allegations.
II. AFFIRMATIVE DEFENSES
Plaintiff has failed to state a claim upon which relief may be granted. Plaintiff’s claim demands monies for an alleged debt for which no proof of said debt, nor proof of ownership of said debt, has been verified and exhibited.
Plaintiff has failed to trace in his statement of claim the derivation of his cause of action from his assignor so that the defendant may challenge the plaintiff’s claim that he is the present owner of the cause of action.
Plaintiff has knowingly filed the claim without presenting any applicable original signed contract.
Insufficient Specificity. Plaintiff has failed to provide the dates on which individual transactions were made, the amounts therefore and the items purchased to be able to answer intelligently and determine what items Defendant can admit and what items he can contest.
Failure of Consideration. No exchange of money or goods occurred between the Plaintiff and the Defendant, therefore, defendant cites Failure of Consideration.
Repudiation. Plaintiff is not named in any alleged signed agreement that is purported to have been entered into between Defendant and Plaintiff.
Lack of Privity. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.
Plaintiff's complaint violates the Statute of Frauds. There is no contract or agreement in writing and signed by Defendant or by some other person authorized by Defendant and who was to answer for a debt.
Scienti et volenti non fit injuria. Plaintiff claims to have purchased the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.
Laches. Plaintiff waited too long to file this lawsuit, making if difficult or impossible for Defendant to find witnesses or evidence or that evidence necessary to provide for Defendant's defense has been lost or destroyed.
1. What am I missing?
2. What have I added that doesn't apply?
3. M&J is listed as attorney's for the plaintiff. How is that different from a debt collector who bought the debt?
3. What if anything should I say regarding a jury trial?
4. The Cardmember Agreement provides for arbitration. What if anything should I say about that?
5. Other thoughts/advice?