Good 'ole Swim received a visit the other day form an uninvited guest and they dropped off a summons.
1. Who is the named plaintiff in the suit?
Capital One Bank
2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
Hunt & Henriques
3. How much are you being sued for?
4. Who is the original creditor? (if not the Plaintiff)
5. How do you know you are being sued?
6. How were you served? (Mail, In person, Notice on door)
Served in person
7. Was the service legal as required by your state?
8. What was your correspondence (if any) with the people suing you before you think you were being sued?
Dunning received, request for verification sent, ~12 months statements received along with an intent to file suit
9. What state and county do you live in?
San Diego, CA
10. When is the last time you paid on this account?
Within Statue of Limitations
11. When did you open the account (looking to establish what card agreement may be applicable)?
12. What is the SOL on the debt?
13. 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).
14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').
16. 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?
30 days after the summons
The action is a limited Civil Case, does not exceed $10,000 The cause of Action complaint with 4 common counts:
Plaintiff alleges the defendant became indebted to the plaintiff
A. Within the last four years
on an open book account for money due
because an account was stated in writing and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff.
Within the last 4 years
for money lent by plaintiff to defendant at defendant's request
for money paid, laid out, and expended to or for defendant's special interest and request.
In the civil case cover sheet the case type is a Contract - Rule 3.740 collections (09).
17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
No additional evidence provided.
My next step is to draft a general denial. My question is, how should I approach the general denial. I've searched the forums here, while there's examples of a lot of other forms and templates, I haven't see any examples of a general denial. Some threads suggest adding all of the affirmative defenses one can, while others suggest to keep it simple.
Can I just send a general denial based on the complaint isn't verified? Should I include separate affirmative defenses as well (such as Failure to State a Cause of Action or ambiguity) or will that cut it?
Next should I send a Bill of Particulars (BOP), requesting all items of the case?
@RyanEX I see you're in SD, any insight would be much appreciated.