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Hey gang, it's been a while since I was a more active member here. I have been lax about cleaning up my wife and my credit and only casually monitoring our credit reports through CreditKarma.com. So, it was no real surprise when we were served papers for a lawsuit in early to mid-December (2015). Although the summons did not have a case number printed on it, I knew that in Colorado the case number isn't assigned until the Defendants have been served, so I didn't hurry to check the docket since the answer wasn't due until January 22nd. The plaintiff in the case is Velocity Invesments, LLC, who until I received the papers had never heard of (they are being represented by Machol & Johannes who I have tangled with in the past semi-successfully). The Complaint claims that Velocity Investments, LLC is an assignee of Santander Consumer USA who we had a car loan through starting in November 2010. In June 2011 I started hearing rumors that my entire department was going to be laid off in September, so we turned in the vehicle voluntarily to avoid an involuntary repossession from appearing on our credit reports. We knew that being less than a year into the loan we would be upside-down and would have a deficiency balance, but decided to worry about that when it happened. As evidence attached to the complaint, they included our initial "Retail Installment Sale Contract" from the dealership that assigned the loan to Santander and the letter of "Explanation of Calculation of Surplus or Deficiency" dated 8/31/2011 that Santander sent after the vehicle had been sold at auction and showed a deficiency of $4646.23 (the unpaid balance of our loan was $15174.73 and they got $10900 for it - the $371.50 difference between the sale and what we owed was for costs associated with putting the car up for sale). I vaguely remember getting the letter for the deficiency, but again, figured I would deal with it at a later date. At the time, we were fast approaching the expected layoff date and I was more worried about keeping a roof over my family's head. Since receiving the "Explanation of Calculation of Surplus or Deficiency" letter, I had received a handful of calls from Santander reminding me about the debt (none of which I answered or returned), but nothing else and when I started using CreditKarma about a year and a half ago, the entry for Santander showed the account was charged off, the debt had been sold to another company (no name mentioned), and the balance was $0. I never saw another listing on my credit reports for the deficiency and thought maybe I'd get lucky and be able to wait out the SOL on it (obviously, no such luck). December passed and I didn't do anything with the summons, including mounting a full-on defense. From my past dealings with M&J I didn't want to tip my hand too early and both work and home life were pretty busy with the holidays and I didn't have the time or energy to really get into it. I can say that my past experiences calmed my nerves and I wasn't panicked or worried about the answer because I knew I had time to answer and that they didn't really have a case as long as I didn't capitulate to anything. Unfortunately, I should have put everything together sooner because the week before the court date on the summons, my wife's father fell ill and she had to travel out of town to be with him and it left me as a sinngle parent for the week of the court date and I was finishing a huge project at work at the same time. I didn't put my answer together until the day before the court date when I had to make the drive from Loveland to Littleton to file my answer in person because I was not going to be able to attend court the following morning. As a result, my answer was short, but hopefully enough to keep them from an MSJ and a default judgment. My answer used two affirmative defenses: Improper Venue and Lack of Standing. Although the contract was entered into in Arapahoe County, I currently live in Larimer County. Article 15 Section 1692i(a)(2) prescribes that court actions must occur where the contract took place or where the defendant(s) live and recommends to Plaintiffs that unless they want the Defendant to object, they should file where the Defendant Lives and not where the contract was signed. I figured it was a longshot and not being there in person to defend it would make it difficult to persuade the judge, but I figured it was worth trying. For lack of standing, although the Complaint identified Velocity Investments, LLC as the assignee of Santander, there was absolutely no supporting evidence included with the summons and complaint. Additionally, they are not listed on my credit reports and I do not recall ever receiving any notice from them that they had been assigned the debt or other attempts to collect it. Unfortunately, case dispositions are not available online for Arapahoe County and I have not received a response to my documents request from the court yet, so I don't know how it played out. I'm posting here because I would like your opinion on how I responded to the complaint and what you think my next steps should be. I think I have answered all of the usual 16 questions for new case posts, but will look over them tonight and post the questions and answers tomorrow. Thanks!
1. Who is the named plaintiff in the suit? Autovest LLC 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Machol & Johannes LLLP 3. How much are you being sued for? $17,114.11 plus $10,454.67 intrest/ attorney fees. TOTAL - $27,568.78 4. Who is the original creditor? (if not the Plaintiff) Wells Fargo Auto 5. How do you know you are being sued? (You were served, right?) Summons & Complaint 6. How were you served? (Mail, In person, Notice on door) In Person 7. Was the service legal as required by your state? Yes Process Service Requirements by State - Summons Complaint 8. What was your correspondence (if any) with the people suing you before you think you were being sued? Zero.. No communication prior to Complaint 9. What state and county do you live in? N.M., San Juan County (11th Judicial District) 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. 29th 2009 11. What is the SOL on the debt? To find out: 6 years on written contract (4 years on verbal contract) Statute of Limitations on Debts 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). Served Summons/Complaint for Money Due - 5/25/2013 Responded to Complaint W/Affirmative Defenses and requested dismissal - 7/8/2013 Dismissed without Prejudice Due to Lack of Prosecution - 2/20/2014 Motion to Vacate Dismissal and Reinstate (states Plaintiff plans to file Dispositive Motion when reinstated)- 3/20/14 Order Granting Plaintiff's Motion to Vacate Dismissal and Reinstate - 3/31/2014 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Debt was "Charged Off" by Wells Fargo when I checked my credit report. Said Charged Off in Oct. 2009 so I figured they gave up or sold truck and got enough off of it to satisfy them. No other negative marks are on credit besides Machols & Johannes running credit prior to filing complaint. 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. No, I sent letter requesting Debt Verification after I recieved complaint. They did respond telling me: Original Debtor Original Account number Contract date (11/16/2007) Charge off date (10/5/2009), Last Pay Date (10/29/2009) Loan agreement (which just looks like paperwork for Warranty,Vehicle Registration, and agreement between the dealership and myself.. Nothing between me and Wells Fargo..) Deficiency Notice Stating that Deficiency balance due was $19,907.34 after selling truck for $11,400 (which I never originally recieved) 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? Already Responded No Interrogatory recieved Claims on Complaint: Defendant executed a loan agreement, promissory note, credit agreement, enrollment agreement and/or lease (the "Agreement"), payable to or for the benifit of the Plaintiff's assignor to evidence the credit extended. Plaintiff claims from the Defendant the amount of $17,114.11, plus intrest ( as allowed by law) as of the date of the Complaint of $10,454.67, and reasonable attorneys' fees, plus court costs, along with continuing intrest at the rate of 16.79% per annum. Plantiff's claim arises from the Defendants failure to pay the liquidated balance due on account number xxxxxxxxxx. The Plantiff claims the right to recover from the Defendant under one or more of the following legal theories: Breach of Express Contract, Breach of Implied Contract, Quantam Meruit, Account Stated and Unjust Enrichment. Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. No Evidence at all was attached with Complaint. Just papers saying "This letter is to provide you with our contact information and to provide you with an opportunity to make voluntary payment arrangements on your account." It goes on to say that it is "not part of a legal pleading and this letter is not part of the Summons and Complaint".
I'm submitting my answer to the County Court on Monday to this summons, as part of the summons a separate form is included which states I have to complete it, titled Answer Under Simplified Civil Procedure (Including Counterclaims(s) or Cross-Claim(S) There are 5 answers which basically say: The amount of damages claimed to be due to the plaintiff by the complaint is not due for the following: The defendant assets the following counterclaim or set offs etc. The defendant asserts __________________, the following cross claims ______________ If a Counterclaim is asserted about you must check one of the following statements: counterclaim does not exceed the jurisdiction of the court blah blah blah I found this on the State of CO site Rule Change #2000(18)CHAPTER 25. COLORADO RULES OF COUNTY COURT CIVIL PROCEDUREAPPENDIX TO CHAPTER 25. FORMS.FORM 1. Summons.FORM 1A. Summons in Forcible Entry and Unlawful Detainer.FORM 1B. Summons for Injunctive Relief for Breach of Restrictive Covenants.The Supreme Court of Colorado hereby amends the language located after the attorney signature portion of the following forms:C.R.C.C.P. Form 1. Summons.This summons is issued pursuant to Rule 303, Rules of County Court Civil Procedure, as amended. A copy of the complaint together with a blank answer form must be served with this summons. This form should not be used where service by publication is desired.C.R.C.C.P. Form 1A. Summons in Forcible Entry and Unlawful Detainer.This summons is issued pursuant to Rule 303, Rules of County Court Civil Procedure, as amended, and section 13-40-111, C.R.S. A copy of the complaint together with a blank answer form must be served with this summons. This form should be used only for actions filed under Colorado’s Forcible Entry and Detainer Act.C.R.C.C.P. Form 1B. Summons for Injunctive Relief for Breach of Restrictive Covenants.This summons is issued pursuant to Rule 365, Rules of County Court Civil Procedure, as amended. A copy of the complaint together with a blank answer form must be served with this summons. This form should not be used when must be served with this summons. This form should not be used where service by publication is desired.Amended and Adopted by the Court, En Banc, July 10, 2000, effective immediately.BY THE COURT:Gregory J. Hobbs, Jr.Justice, Colorado Supreme Court I don't know if this is still part of the current law, however, would appreciate any advice, I don't want to be forced into stating I an counterclaiming etc., if I am challenging their right to collect in the first place, The debt with Capital One has been charged off, they have NO attorney of record on my account per conversation with them last week.Thanks for any help..