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Found 125 results

  1. I have to go to court next month in Florida because a Junk Debt Buyer attorney sues me for a Credit card debt. I have already filed my Answer and Affirmative defenses and I went for a pretrial conference a couple of weeks ago and the attorney said he can provide 15 pages of evidence and they are not settling the debt for less than the amount I am sued for. I have received 3 pages of the evidence: Affidavit of Debt or Sale; Bill of Sale; Plaintiff's witness list. I don't know what my next step should be. I have been reading some articles online for striking them all or I can file a subpoena for a debt validation. I have a couple of questions here since I am not an attorney. 1. Is it better to file three separate motions to strike or a subpoena for debt validation together with a debt collector disclosure statement containing 50 questions OR BOTH. 2. If it is better to file the motions to strike am I allowed to file 3 motions at the same time in Florida or it should be one motion striking all three pieces of evidence- the affidavit, the bill of sale and the plaintiff's witness list. 3 I went to the clerk of courts and they gave me three subpoena forms- "SUBPOENA DUCES TECUM FOR TRIAL; SUBPOENA FOR TRIAL; SUBPOENA FOR DEPOSITION. I am not sure which one of those I should use to fill up the following. The contents of the subpoena should be the followings: ------------------------------------------------------------------------------------- " I ,the Defendant in the above captioned lawsuit, hereby, respectfully, demand from the Plaintiff the followings: a). The original Credit Contract, signed by me, setting forth the terms of such a contract. . The Debt Purchasing Agreement, setting forth the terms, legality, right and extent of transfer. Please do NOT provide a Bill of Sale, as it does NOT set forth the full terms of the alleged debt purchase, nor does it show what rights has been transferred. c). A copy of all receipts, for all the purchases, allegedly made by the Defendant, and which has contributed to the total amount of the alleged debt owed, as maintained and reflected in the records of the Plaintiff. d). A certified complete itemized break down of the amount alleged owed. e). A sworn Affidavit to the followings: 1). That no consumer protection laws, both State and Federal, has been violated in bringing about this lawsuit. 2). That the total amount alleged owed, is owed in its entirety, to the plaintiff. 3). Whether or not, any part of this alleged debt has been charged-off, claimed as a loss, or an insurance policy has been claimed, as a compensation, by any creditor or debt collector. f). Fill in the attached Debt Collector Disclosure Statement. (44 questions) ------------------------------------------------------------------------------------ Debt Collector Disclosure Statement Notice This Debt Collector Disclosure Statement is not a substitute for, nor the equivalent of, the hereinabove-requested verification of the record, i.e. " Confirmation of correctness, truth, or authenticity, by affidavit, oath, or deposition " (Black's Law Dictionary, Sixth Edition, 1990 ), re the alleged debt, and must be completed in accordance with the Fair Debt Collection Practices Act, 15 USC §1692g, applicable portions of Truth in Lending (Regulation Z), 12 CFR 226, and demands as cited above Disputed Debt. Debt Collector must make all required disclosures clearly and conspicuously in writing re the following 1. Name of Debt Collector.......................................................................................... 2. Address of Debt Collector...................................................................................... 3. Name of alleged Debtor........................................................................................ 4. Address of alleged Debtor..................................................................................... 5. Alleged Account Number...................................................................................... 6. Alleged debt owed................................................................................................ 7. Date alleged debt became payable......................................................................... 8 Re this alleged account, what is the name and address of the alleged Original Creditor, if different from the Debt Collector.............................................................................. 9. Re this alleged account, if Debt Collector is different from alleged Original Creditor, does Debt Collector have a bona fide affidavit of assignment to enter into original contract between alleged Original Creditor and alleged Debtor?. Yes No 10. Did Debt Collector purchase this alleged account from alleged Original Creditor? Yes No N/A . 11. If applicable, date of Purchase of this alleged account from alleged Original Creditor, and purchase amount Date.................................................... Amount$........................................................... 12. Did Debt Collector purchase this alleged account from a previous debt collector? Yes No N/A . 13. If applicable, date of purchase of this alleged account from previous debt collector, and purchase amount Date................................................... Amount $ 14. Regarding this alleged account, Debt Collector is currently the (a). Owner; ( Assignee; (c ) Other-explain 15. What are the terms of the transfer of rights re this alleged account? 16. If applicable, transfer of rights re this alleged account was executed by the following method (a) Assignment; ( Negotiation; (c ) Novation; (d) Other-explain 17. If the transfer of rights re this alleged account was by assignment, was there consideration? Yes No N/A . 18. If applicable, what is the nature and cause of the consideration cited in #17 above? 19. If the transfer of rights re this alleged account was by negotiation, was the alleged account taken for value? Yes No N/A . 20. If applicable, what is the nature and cause of any value cited in #19 above? 21. If the transfer of rights re this alleged account was by novation, was consent given by alleged debtor? Yes No N/A . 22. If applicable, what is the nature and cause of any consent cited in # 21 Above? 23. Has Debt Collector provided alleged Debtor with the requisite verification of alleged debt as required by the Fair Debt Collection Practices Act? Yes No . 24. If applicable, Date said verification cited in # 23 was provided to alleged Debtor .... 25. Was said verification cited in # 23 in the form of a sworn or affirmed oath, affidavit, or deposition? Yes No . 26. If applicable, was verification cited in # 23 provided alleged in the form of Oath Affidavit Deposition . 27. Does Debt Collector have knowledge of any claim (s)/defense (s) re this alleged account? Yes No . 28. If applicable, what is the nature and cause of any claim (s)/defense (s) re this alleged account? 29. Was alleged Debtor sold any products/services by Debt Collector? Yes No 30. If applicable, what is the nature and cause of any products/services cited in # 29 above? 31. Does there exist a verifiable, bona fide, original commercial instrument between debt Collector and alleged Debtor containing alleged Debtor's bona fide signature? Yes No 32. If applicable, what is the nature and cause of any verifiable commercial instrument cited in # 31? 33. Does there exist verifiable evidence of an exchange of a benefit or detriment between Debt Collector and alleged Debtor? Yes No 34. If applicable, What is the nature and cause of this evidence of an exchange of a benefit or detriment as cited above in # 33? ..................................................................... ............................................................................................................................................ 35. Does any evidence exist of verifiable external act (s) giving the objective semblance of agreement between Debt Collector and alleged Debtor? Yes No 36. If applicable, what is the nature and cause of any external act (s) giving the objective semblance of agreement from # 35 above? ......................................................................... ............................................................................................................................................. 37. Have any charge-offs been made by any creditor or debt collector regarding this alleged account? Yes No 38. Have any insurance claims been made by any creditor or debt collector regarding this alleged account? Yes No 39.Have any tax write-offs been made by any creditor or debt collector regarding this alleged account? Yes No 40. Have any tax deductions been made by any creditor or debt collector regarding this alleged account? Yes No 41. Have any judgements been obtained by any creditor or debt collector regarding this alleged account? Yes No 42. At the time the alleged original contract was executed, were all the parties apprised of the meaning of the terms and conditions of said alleged original contract? Yes No 43. At the time the alleged original contract was executed, were all parties advised of the importance of consulting a licensed legal professional before executing the alleged contract? Yes No 44. At the time the alleged original contract was executed, were all the parties apprised that the said alleged contract was a private credit instrument? Yes No THANK YOU VERY MUCH FOR RESPONDING AND YOUR HELP!
  2. We live in MI. Got served summons from AMEX on CC debt by zwicker. Answered summons denied everything, affirmative defenses, discovery, counter sued... the works. So they filed for summary and we didnt show up because we got the notice 3 days prior to the appearence and didnt get the mail in time, but they didnt show up either. Meanwhile we had gotten a letter for Stillman Law Office saying that they were collecting on a debt of .01 and said verify or we'll proceed blablabla. Stupidly we ignored it and it turns out that Stillman is the new law firm and we missed the validation window (we recieved the letter on Nov 5). We still have a notice to appear for Jan 5 for pretrial conference, but now we just received notice from Stillman to appear on Jan 11 for summary disposition. Do all my requests for discovery and such still apply. Plus Zwicker was named in my countersuit.. what happens with that? Not sure how to proceed. Also I'll be looking up how to fight summary judgement but any pointers would be great. Thanks
  3. Some background -- Being sued in Michigan for ~5 year old CC debt by Shermeta, Adams & Von Allmen. I have a lawyer representing me. We filed an answer. Answer was asking for discovery/validation that I owed the debt. My lawyer figured that they would call him asking, "What's up with this answer?" and we can negociate to settle said debt so as not to go to pre-trial. I get a letter in the mail on Saturday from my lawyer that says pretrial conference is scheduled in July. Looks like SA&VA filed this the day the answer was due, pretty quickly. So, I guess my question is how likely is SA&VA to call my lawyer now that they have made arragements for pretrial conference? I've called my lawyer this morning, and he wasn't in the office yet so I'm waiting for a call back. For those of you that have dealt with these idiots, what was your outcome? I'm thinking they are doing this and ignoring contact with my lawyer (my lawyer has already called them prior to filing of answer and he gets no response) thinking that I will not show up to pretrial conference and they will get a default judgement...which will NOT happen. Any help would be apprecaited.
  4. I received a Summons from Portfolio Recovery Associates for an old credit card debt and I filed a response with the court basically requesting records of chain of assignment because they failed to attach a copy of the alleged assignment and asked that the affidavit referenced to in the summons be stricken from the record and also requested the complaint be dismissed with prejudice for lack of evidence and failure to establish standings (they provided nothing at all in the summons other than the original creditor's name and the date they supposedly bought the debt). I also included prior legal precedents where cases were dismissed because the Plaintiff failed to provide proof of the debt in my response. I wasn't able to go to court (couldn't get off work) but the the lady who filed my response at the court house assured me that it was fine as long as I had a response filed, so I don't know what happened (planning on calling the court house tomorrow). Today I received a Notice of Pretrial Conference from Portfolio in the mail(they didn't even spell pretrial right.. they have it as pretrail). It has no information on it other than the court date and it says that it was E-filed with the Clerk of the Court the day after the original court date. When I go to the pretrial, do I need to request proof from them again that I owe the debt and that they can legally collect on it since I already did in my initial response? Since the case wasn't dismissed and there is a pretrial now, does it mean that they provided the information I requested to the judge and that's why he didn't dismiss it? I've never had to do any of this before and I'm trying to figure out what it all means and what to do next. I was under the impression that the judge would make his decision on the original court date so I was surprised when I received the Pretrial Conference letter in the mail and I also thought that they had to serve or at the very least certify mail documents regarding court cases to ensure that I received it. Anyway, any thoughts or advice of what my next step should be would be greatly appreciated. I don't know what my next step would be. Thanks!
  5. Hi everyone! I have about 7 days to answer a notice of entry of order from Arrow Financial services,llc assignee of washington mutual bank via attorneys weber & olcese,plc. History: (sorry this is long but want to include everything to get your opionions!!) 07/31/2010 received summons and complaint (21 days to answer) -count I: breach of contract -count II: account stated -count III: unjust enrichment Attcmnts received: arrow letter head with date,my name, my former address,arrow acct#,OC acct#, OC name, and supposed current balance. Attcments received: affidavit of account. 08/04/2010: filed answer,denying all 08/04/2010:also filed motion to strike and dismiss which due to clerk error did not get on the docket. -affirmative defenses: lacks legal standing to bring suit -court would unjustly enrich plaintiff by granting relief sought -plaintiff has not proven debt is valid or amount is accurate. -ask for dismissal with prejudice 08/11/2010:received notice to appear-pretrial conference for 8/23/2010 08/11/2010:received letter from weberolcese admitting receiving my answer and offer consent order for judment and installment payments settlement. answered their letter with full denial and no settlement. 08/18/2010: received letter requesting the court to allow their attorney to appear via phone. court granted this. 08/23/2010:attended conference. declined settlemnt. pleadings ordered satisfactory. magistrate ordered them to produce info on debt by 11/23/2010 which they acknowledged in presence of magistrate and asked for extended time to produce. discovery shall be completed by 11-23-2010. ask about the motion to strike and dismissal and magistrate said was not on docket. refiled both on 8/23/2010 hearing set 09/27/2010: appeared in court. judge set dates for witness list and exhibit list. which i have received. nothing out of the ordinary- -they claim they will be presenting the contract between parties, copy of account summary, copy of payments by defendant, monthly billing statements, affidavit of acct. 11/23/2010 came and went with no documentation from them showing anything then I received the following. Should I have refiled for discovery? Magistrate ordered them to produce info on debt and nothing received. 11/26/2010 received notice of entry of order if no written objection within 7 days clerk will file for submition. it is as follows: It is hereby ordered and adjudged that defendant's motion to strike and motion to dismiss is denied as to count II of plaintiffs complaint. It is hereby ordered that Defendant's Motion to Dismiss is granted without prejudice as to Count I of plaintiff's complaint. What does this mean?????? The way I see it, is their denying the strike and dismiss on the "account stated". BUT their granting the motion to dismiss without prejudice on the "breach of contract". No mention of count III of "unjust enrichment" What do I need to do?? should I object to all on grounds of no info received on the debt as ordered by the magistrate and ask for full dismissal with prejudice? Thank you!!!
  6. Served for a pretrial conference in small claims court, me vs. Citibank South Dakota (Zakheim and a$$.) Prior to being served I received no certified mail. The Complaints are - Open Account AND Account Stated, there was an account statement attached, almost a year old with my name and address and nothing more. I showed up for the pretrial and simply stated denied so a court date was set. SO...I have read and read and see some positive threads and some not. My questions/concerns are should I get myself an Attorney to represent me in this or go Pro Se? If I go Pro Se what should I be prepared for when I show up for this trial? What may be presented or asked and what should my defenses be? The only thing I have read is that an account statement is not proof and if they produce an Affidavit I would request the affiant appear in court? Please Help!
  7. My wife is being sued by Gurstel Chargo on behalf of Discover Card. She was served and provided her Answer to the Plantiff's Complaint. She was given the date for the Pretrial Conference, which is tomorrow. She is worried because she also was sent Non-Uniform Interrogatories, Requests for Admissions, Request for Production of Documents, Initial Disclosure Statement and Notice of Service of Initial Disclosure Statement, all of which she did not answer and return. How big of a problem is this and what should she do? Thanks!
  8. This is Arizona Rules of Civil Procedure for Discovery. Can you tell me if I have this right? I am allowed to provide the Plaintiff with 40 Interrogatories, 10 Produce the Documents and 25 Admissions. I am a little confused on the Admissions statement about "25 requests in any case". Please tell me they are not stating that collectively I can only have 25 for all three? I am sure that the last sentence in Admissions means the Interrogatories are separate and I am still allowed 40 of those. As well as the 10 of the Document requests. INTERROGATORIES (a) Presumptive Limitations. Except as provided in these Rules, a party shall not serve upon any other party more than forty (40) interrogatories, which may be any combination of uniform or non-uniform interrogatories. Any uniform interrogatory and its subparts shall be counted as one interrogatory. Any subpart to a non-uniform interrogatory shall be considered as a separate interrogatory. PRODUCTION OF DOCUMENTS The requests(s) shall not, without leave of court, cumulatively include more than ten (10) distinct items or specific categories of items. ADMISSIONS Each party without leave of court shall be entitled to submit no more than twenty-five (25) requests in any case except upon: (1) agreement of all parties; (2) an order of the court following a motion demonstrating good cause, or (3) an order of the court following a Comprehensive Pretrial Conference pursuant to Rule 16©. Any interrogatories accompanying requests shall be deemed interrogatories under Rule 33.1.
  9. Husband is being sued by JDB in county court. He was served and then filed an answer to the complaint. Case set for pretrial conference in a couple weeks. Per the court's pretrial, both parties have to complete a Discovery Statement and any request for additional discovery must be in writing. Here is what the Plaintiffs (JDB) have sent us. Plaintiff's Disclosure Their witnesses include my husband and one of their employees. They employee will testify to: Documents they will use: Application (this has husband's name, phone, DOB, SSN & signature on it) 3 statements from OC showing amounts due/payments made - these are faxed copies and the final balance on the most recent statement does match their complaint balance Generic Credit Card Disclosures (look to be printed from store website) Assignment and Bill of Sale dated 2006 - This is supposedly signed by Vice President of OC. There is no notary it is NOT an affidavit just formatted like a letter. In summary it states: "OC has entered into agreement the sale of accounts described in Section C to Purchaser. **The name of the purchaser is two letters and 4 numbers. It is NOT the name of the JDB suing*** ...Seller sells, assigns...each of the Account Receivables descirbed in the Agreement and in Exhibit A" However, there is no Section C listed and not Agreement or Exhibit A attached. Verified Affidavit - This is a notarized affidavit from a "Partner" for the JDB stating that the plaintiff is the holder of the account and the amount of complaint and interest rate. What reasons could we use to deny the validity of their witness? Here is what we're thinking regarding the evidence: Not sure what to do about the app. The statements cannot be authenticated and therefore should be inadmissable. I don't know that there is much at issue with the terms of the credit card. This should be inadmissable as the purchaser referenced is NOT the JDB and there is no specific account info and no attached Agreement or Exhibit A What would be our reason that this should be struck?
  10. Could not find answer to this in forum. Received summons from Attorneys for noted JBD. Replied to summons and copied court with a letter, in language similar to a DV. Did not respond to allegations in complaint, did not state an affirmative defense. Have I totally screwed myself? Looking through MA civil procedures, I can't find a specific remedy in terms of my ability to amend my answer correctly. There is a scheduled case management conference in very very near future, stated purpose is to "determine trial readiness, conduct early-intervention alternative dispute resolution, deadlines for discovery, amendment of pleading, addition of parties, dispositive motions, disclosure of expert witnesses, resolve any discovery dispute and address pending motions, review any propsed case management orders submitted by any party, enter case management orers, and assign firm trial date for cases ready for trial, or firm pretrial conference date for all cases not ready for trial". Original debt dates from 2008, original amt was approx $6K, has been run up another $2k with the attorneys. I am indigent and so have little hope of negotiating any attractive settlement, even on a low monthly payment basis. Strategy, if any? Hide head in sand?
  11. Does the defendant, as his own attorney [pro Se], have the constitutional right to participate in person at side bar, chambers conferences, participating in voir-dire, and any other conferences before the trial judge reaches any decision on the matters discussed during such conferences/ side bars? As I understand it the Pro Se defendant possesses the right to participate in such substantive conferences with the court, "to argue points of law * * * and address the court and the jury at appropriate points in the trial." McKaskle, 465 U.S. at 174, 104 S. Ct. at 949, 79 L. Ed. 2d at 131 If true, does this apply to any pretrial conference before the JAs’ Clerk and Magistrates conducting such pretrial conferences? One of our cases had such a situation where the pretrial side bar prohibited Pro Se defendant from a sidebar which matters of the case, witnesses and evidence were discussed and had a significant outcome on the case. NOTES: The Judicial Assistant who conducted pretrial conference resided at side bar with Plaintiffs representative to discus and record essential trial tasks (e.g., witnesses, jury, time to prepare for trial, trial schedule, etc.). The pretrial order was prepared without the participation of the Pro Se defendant. a) The Plaintiffs representative was absent [late] when the case/docket was called before the court. Pro Se alone presented before the court while JA (Judge) acted as advocate for the Plaintiff in absentia. The defendant was required to plea [answer] before the court (deny or admit) before sent to required pretrial mediation, without the presence of Plaintiff. [Plaintiff appeared later in mediation]. c) The formal answer of the defendant, filed with the court in advance, included jury trial. The JA ‘overlooked’ the formal request and any comments for jury trial from defendant, indicating ‘NO’ as a check mark under jury trial. The JA resided over side bar with Plaintiff to confirm pretrial agreements and record pretrial order. While the defendant was not bared from participation, neither was the defendant asked to participate. No question were asked of the defendant. Defendant was asked if (defendant) had any questions and instructed to sign the pretrial order. - The JA ‘overlooked’ defendants’ participation in pretrial agreement concerning witness list(s). On the pretrial order form, by defendant the JA recorded ‘none’. - The JA and Plaintiff, discussed ‘suitable and convenient’ agreements for trial dates, and prohibited defendant from such participation in trail scheduling or concern for defendants’ time to prepare for trial. What the F#<!+^C was that ! What type of action do you file – hearing, motion, mistrial – what?
  12. 1. Who is suing you? Capital One, via Blatt, Hasenmiller, Leibsker & Moore 2. For how much? Just under $3000 3. Who is the original creditor? Cap One 4. How do you know you are being sued? Received summons 5. How were you served? Were you served? Served personally at home 6. What was your correspondence (if any) with the people suing you before you think you were being sued? With this attorney, none. The last thing I got was correspondence from CA Firstsource, which I DV'd. All they sent me back was one statement from 2006 showing an account owing about $600. That was in January of this year. Next thing I heard was this summons. 7. Where do you live? Illinois 8. When is the last time you paid on this account? I'm guessing some time in 2006 9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or looking it up online (many states have this information posted daily). Has return date set for 9/20/2010 10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No 11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. See above - requested validation from Firstsource but was never contacted by BHLM before now. 12. Does your summons require a response in writing? (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. 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? No. The Summons gives a date to appear to answer the complaint. 13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? The only exhibit they attached was the usual generic Litigation Support Representative affidavit that gives no particulars other than this person owes this because we say so. 14. What is the SOL on the debt? 5 years in Illinois. I have read in different places that Cap One Customer Agreement uses Virginia SOL which is 3 years but I don't know if that is still the case. From the district court website: RULE 3.1 ACTION OF COURT ON RETURN DAY In all small claim cases, on the appearance date the judge shall take the following action in the following events: (a) If the defendant has not appeared and the plaintiff is present, a default judgment shall be entered on the complaint, provided that in all cases of unliquidated damages the plaintiff shall be required to make proof of damages in open court. ( If the defendant appears but neither the plaintiff nor the plaintiff's attorney appears, or if neither party appears, the case shall be dismissed. © If both parties appear, the judge shall ascertain whether the claim is contested and, if it is not, enter an appropriate order for the payment of the judgment in installments or otherwise as the case may be. If the claim is contested, the judge shall conduct an informal pretrial conference in an attempt to help the parties settle the case. If the case cannot then be settled, the judge shall set it for trial on the next available date, unless all parties announce that they are ready for immediate trial, no one has timely demanded a jury, and the judge's calendar permits the case to be tried on the appearance date. My question is, since there is no ahead of time written answer to the complaint how do I "contest" this? Do I go in with any written answers or just verbally tell the judge I contest this and why? Would the "informal pretrial conference" be the time to ask for things like original contract, accounting of how they came up with the amount, etc? I really hate Illinois. I would much prefer to do as much as possible in writing.
  13. I am very grateful with this forum ! On July 19 I received a Subpoena (from Portafolio Recovery Associates ) , They wanted me to provide statements , internal correspondence , I objected everything .(They wanted me to prove their case for them ) . tHE LAWSUIT IS FOR 2,200.00 On saturday I received a Notice of Pretrial conference , The date will be September 7,2010 , They haven't answered my discovery . My questions are : Can I do anything before The Pretrial ? How I can prepare myself ? Thanks a lot for your help
  14. Hello everyone. Here's the short version of a long story. Being sued by Mldland funding in Michigan for under 1500 dollars. I was served with a summons by a process server on what amount to an account stated case. I answered their complaint in writing basically denying everything since I received little from them except a summons and an affidavit that says some random third party to the OC says I owe such and such amount. I filed my own affidavit to counter theirs and submitted a motion to strike the plaintiff's affidavit based on hearsay, shes not an employee of the oc etc. I promptly received a notice to appear at a pretrial conference in a little over a month. This was followed by the plaintiff's reply to my Motion to strike. Basically they simply stated she can provide testimony based on her "personal knowledge" of the account (even though she was never an employee of the OC) and asked the court not honor my motion to strike. What can I expect in a "pre-trial conference: status conference"? Obviously I've never been through any of this before and have no clue what to do next. I'm learning as I go but I'm also a little concerned about letting all of this drag out. If they end up winning they'll tack on another grand or two legal fees won't they?
  15. So, going on about a month ago my lawyer sent the plaintiff JDB lawyer a request for discovery. I figured that since they sent their pretrial statement to us and the court super early that they would reply to our request soon. FYI -- in their pretrial statement they claim that they have a witness --an accountant with Palisades Collection <sorry Palisadaes, I NEVER had an acount with you!>, signed contract <as they put it, "If available">, and various monthly billing statements. We go to pretrial conference on Monday afternoon, and I nor my lawyer have yet to receive any proof from them. Is it safe to say that if they don't send you anything before the pretrial conference that it's pretty much bull poop that they put in their pretrial statement? I mean, why not respond to what's being asked of you?? My lawyer is just going to tell the judge that we asked for discovery of documents weeks ago and they never provided them, and then the judge is going to tell them they have 28 days (approx) to give us the documents and then we'll reschedule the pretrial conference, or maybe even go to trial. Any one have any experiance with this? I've seen many threads here where the "documents" that were provided were blacked out SSN's or other junk documents that were provided up front, but not too many that didn't send SOMETHING when asked. Thanks!
  16. I was served on 1/14/10 from Capital One (in Small Claims Court) a "Summons/Notice to appear for Pretrial Conference/Mediation" and the court hearing was for 2/10/10. I called the attorneys office and the lady said I would not have to go to court if I agreed to pay $50.00 a month which I also had to sign a stipulation agreement. After I paid the first $50.00 I sent them a letter stating when I agreed to pay I mistakenly was referring to a different credit card and to the best of my knowledge I do not recall ever having an account with Capital One and requested validation.The lawsuit is for $3,000 plus fees. When I first received the complaint it only had a 2005 customer agreement attached to it (no signature). I never heard back from them until I received a "Default Final Judgment" in the mail on 6/25/10. The Default Judgment was entered because "Defendant failed to appear at the Pre-Trial conference". I went to the clerks office and viewed the file yesterday and saw where the attorney on 6/11/10 filed a "Motion for Final Judgment" along with an Affidavit from someone from Capital One. I never received any copies of what was going on, if I had I would have filed a response right away. Does anyone have a suggestion on what to do or how to approach this?
  17. Admin Proof Arbitration Works ? MG05 / Trueq I guess I should first mention that I found this site while searching for some free legal advice because I was broke and Cap1 had filed 4 lawsuits against us , one against my wife and three against me and at that time the collectors were calling between 15 and 30 times every day . This is going to be a long post so maybe I will do it in 2 posts . I received a lot of good advice from a lot of people on this site , I started by filing a MOTION TO QUASH because we had never been served , a MOTION TO DISMISS because they had presented no proof what so ever except a boiler plate agreement that I could not have agreed to . I had also filed a MOTION TO DISMISS PRETRIAL CONFERENCE / MEDIATION and requested protection from the Court because I had not been served . I did these motions because of the information from site members , I did not know I was suppose to set the motions for hearing , nor did I know there was such a thing as a Verified Return Of Service , all I did know is we were out of the State of Florida at the time they said they served us . We notified the Cap1 lawyers that the service was defective and demanded it be corrected , we did have the 4 accounts with Cap1 but had no records at all and we had went broke due to a sinkhole problem and then an auto accident with both insurance company's denying our coverage ( long Story ) . I decided to fight them because I thought it was morally wrong to take us to Court with out serving us the summons and refusing to give us any accounting of the amount they were demanding . We thought there was no way we could owe them the amounts demanded . We had notified them after the accident and requested they freeze our accounts and give us their lowest interest rate , instead they raised us to the highest rate and started adding everything they could . Now we get a court order to appear for a hearing held just before the pretrial was to be held , they had grouped three of the cases together for this hearing , they left the one case out because in that case we had been served okay . Now this is where we started to find out how unfair and corrupt CAP1 is and how our court system allows them to get away with it . This hearing started our learning lesson about how they ignore our rights to due process of law and we do not have Civil Rights that we think we have , I decided at this time to fight this to the end . Just picture this , the hearing was a scam from start to finish , it was held in open court and we could not hear what was being said , the judge first asked me and my wife if we had anything to add , we said no because at that point what would we add , nothing had even happened , he then asked the Cap1 lawyer , she said something to the Judge , held up some paper work and the Judge dismissed all six Motions in about two minutes it was over and we went to Pretrial Conference/Mediation . Being Pro Se I could clearly see we had been shafted but did not know why , so back to the site , I then realized there was a Verified Return of Service and the Server had falsified it and then the Cap1 lawyer had submitted it to the Court to have my MOTION TO QUASH denied , she did this knowing it was false . Cap1 also submitted documents that had no connection to case 1763 and with that had my MOTION TO DISMISS denied my other motion that stated the service was invalid was ignored , so I filed new motions , they were ignored , then I learned they had to be set for hearing , so I motioned to set for hearing , the court ignored them also , now CAP1 filed for SJ and I knew I was toast so I turned to Trueq and MG05 , it seems that there is a lot of disagreement on arbitration so please keep reading and you will see how important the advice is that Trueq and MG05 are giving and what a shame it will be if we lose those two . I will post this and then finish with a second post .
  18. I filed my papers today, I hope I did it right. 1.) I filed a Notice of Apperance 2.) Motion to Compel ARB with (Exibit A) Discover Card holders agreement and a Copy of the AAA Form. 3.) Sworn denial I did not give them my Ans. & Def., I'm not sure where to look in the Oklahoma Civil Proc. Court's website page to see If I am in trouble if I do not provide the Ans. & Def. before everything gets started. Does anyone know where I might point my search engine to find what I am looking for? OK, I think I found what I'm looking for! But I need some help understanding it all. Can I get a brilliant legal minded person to take a look and see If I set my self up to be DOOMED! From what I'm getting out of it, it states that I still have to submit ans. & Def. I had (35) days on the summons. Thanks! Oklahoma Statutes Citationized Title 12. Civil Procedure Chapter 39 - Oklahoma Pleading Code Section 2012 - Defenses and Objections - When and How Presented - By Pleading or Motion Cite as: O.S. §, __ __ -------------------------------------------------------------------------------- A. WHEN PRESENTED. 1. Unless a different time is prescribed by law, a defendant shall serve an answer: a. within twenty (20) days after the service of the summons and petition upon the defendant, b. within twenty (20) days after the service of the summons and petition upon the defendant, or within the last day for answering if applicable; provided, a defendant may file a reservation of time which shall extend the time to respond twenty (20) days from the last date for answering. The filing of such a reservation of time waives defenses of paragraphs 2, 3, 4, 5, 6, and 9 of subsection B of this section. 2. A party served with a pleading stating a cross-claim against that party shall serve an answer thereto within twenty (20) days after the service upon the party. 3. The plaintiff shall serve a reply to a counterclaim in the answer within twenty (20) days after service of the answer or, if a reply is ordered by the court, within twenty (20) days after service of the order, unless the order otherwise directs. 4. The party requesting a summons to be issued or filing a counter-claim or cross-claim may elect to have the answer served within thirty-five (35) days in lieu of the twenty (20) days set forth in this section. 5. The service of a motion permitted under this section or a motion for summary judgment alters these periods of time as follows: if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within twenty (20) days after notice of the court's action, unless a different time is fixed by order of the court. B. HOW PRESENTED. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: 1. Lack of jurisdiction over the subject matter; 2. Lack of jurisdiction over the person; 3. Improper venue; 4. Insufficiency of process; 5. Insufficiency of service of process; 6. Failure to state a claim upon which relief can be granted; 7. Failure to join a party under Section 2019 of this title; 8. Another action pending between the same parties for the same claim; 9. Lack of capacity of a party to be sued; and 10. Lack of capacity of a party to sue. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered 6 of this subsection to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and all parties shall be given reasonable opportunity to present all material made pertinent to the motion by the rules for summary judgment. A motion to dismiss for failure to state a claim upon which relief can be granted shall separately state each omission or defect in the petition, and a motion that does not specify such defects or omissions shall be denied without a hearing and the defendant shall answer within twenty (20) days after notice of the court's action. C. PRELIMINARY HEARINGS. The defenses specifically enumerated in paragraphs 1 through 10 of subsection B of this section, whether made in a pleading or by motion, and the motion to strike mentioned in subsection D of this section shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial. If the court determines that venue is proper, the action shall not be dismissed for improper venue as a result of the jury's verdict or the subsequent ruling of the court on a demurrer to the evidence or a motion for a directed verdict. D. MOTION TO STRIKE. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by this act, upon motion made by a party within twenty (20) days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense. If, on a motion to strike an insufficient defense, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for partial summary judgment and all parties shall be given reasonable opportunity to present all materials made pertinent to the motion by the rules for summary judgment. E. CONSOLIDATION OF DEFENSES IN MOTION. A party who makes a motion under this section may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this section but omits therefrom any defense or objection then available to the party which this section permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in paragraph 2 of subsection F of this section on the grounds there stated. The court in its discretion may permit a party to amend a motion by stating additional defenses or objections if an amendment is sought at least five (5) days before the hearing on the motion. F. WAIVER OR PRESERVATION OF CERTAIN DEFENSES. 1. A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process, failure to state a claim upon which relief can be granted, or lack of capacity of a party to be sued is waived: a. if omitted from a motion that raises any of the defenses or objections which this section permits to be raised by motion, or b. if it is not made by motion and it is not included in a responsive pleading or an amendment thereof permitted by subsection A of Section 2015 of this title to be made as a matter of course. A motion to strike an insufficient defense is waived if not raised as in subsection D of this section. 2. A defense of failure to join a party indispensable under Section 2019 of this title may be made in any pleading permitted or ordered under subsection A of Section 2007 of this title or at the trial on the merits. A defense of another action pending between the same parties for the same claim or a defense of lack of capacity of a party to sue may be made in any pleading permitted or ordered pursuant to the provisions of subsection A of Section 2007 of this title or at the pretrial conference. 3. Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action. 4. A waiver of the defense in paragraph 6 of subsection B of this section does not preclude a later contention that a party is not entitled to any relief as a matter of law, either by motion for summary judgment, or by demurrer or motion at or after trial. G. FINAL DISMISSAL ON FAILURE TO AMEND. On granting a motion to dismiss a claim for relief, the court shall grant leave to amend if the defect can be remedied and shall specify the time within which an amended pleading shall be filed. If the amended pleading is not filed within the time allowed, final judgment of dismissal with prejudice shall be entered on motion except in cases of excusable neglect. In such cases amendment shall be made by the party in default within a time specified by the court for filing an amended pleading. Within the time allowed by the court for filing an amended pleading, a plaintiff may voluntarily dismiss the action without prejudice.
  19. Hello, I was served by the Sherrif Dept on Friday night for a Summons/Notice To Appear For Pretrail Conference/Mediation In Polk County,FL for a old credit card debt from Applied Bank. I believe the original card only had a $500 limit and I'm being sued for $1,287 plus interest,costs and disbursements by a Lawyer Firm Pollack & Rosen, P.A. out of Coral Gables, FL. It seems to me this debt was probally sold off before landing in thier hands. What should I expect at the Pretrial Conference? How do I go about disputing the debt and requesting to see the original contract and all the statments that show how they got to such a high amout when the card only had a $500 limit? I'm married and have a child and I'm the only one working and a judgement or garnishment could put us on the street. I read that if you are head of household in the State Of Florida you can stop your wages from being garnsihed? The debt is in my name only and was before I was marrried. I do not own a home or have any valuable assets as my car is not worth very much at all. Anyone have any suggestions on how I should proceed or what to expect? I go to court in the next few weeks. Thank You
  20. I think I'm suppose to send one but we are both really late on it. I just got the plaintiffs in the mail and here it is 1. Factual Basis of claim: On or about xx defendant opened a cc account with bank visa (or its predecess-in-interest) account number xxxxx, which is now owned by Plaintiff. (never seen proof they own it) Subsequently, the account became delinquient and was closed on or about Nov 2004 (this makes it SOL I believe) As of xx date there was a bal due and owing of $xxxx. There after defendant made a total of $xxx in payments (x pymts $xx) from 2006 thru 2008 leaving a bal due and owing in the amount of $XXXX with interest at 10% from xx of 2008. LEGAL THEORY: 2. Breach of contract 3 Trial Witnesses a) Person from JDB (maybe owner??) This witness will have knowledge as to the amount due and owing as provided to him from the assignor (is there a difference between seller and assignor?) B)myself C)spouse (who I wasn't even married to when I opened the alledged account and never benefited from it) 4. Other Wisnesses- none 5. Statement of witnesses - N/A 6. Expert witnesses- N/A 7. Damages: Balance of $xxxx.xx plus court costs, interst and attorney's fees. 8. Trial Exhibits (attached ) a)Monthly statemnts dated 12/2002,12/2003, 11/2004, 11/2004 3 screens itiemizing pymnts made from 2006-2008 (Az law does not retrigger SOL with part pymts but wether the judge upholds that is another thing) 9. Other exhibits pertaining to case - none Seems to me they don't have much but I don 't know how the courts look at those old statements. And the screenshots they provided really aren't legible and have no date stamps to say when they were from or when the plaintiff got them. How do I fight this ? and what should I do about the 26.1 I need to file. I don't have anything other then what they just supplied. I don't even know what my legal theory should be. Pretrial conference is in a couple days. In their earlier motions they are trying to say 6 year sol but have never produced a copy of a contract and from this it doesn't look like they have one.
  21. The CA attorney filed a motion to appearance to be by telephone for the pretrial conference because they are out of the area. I think I should object to this but not sure what grounds I could use that might hold weight. Any help on phasing the objection would be appreciated.
  22. ok, I got court tomorrow for pretrial conference and oral arguements for my motion to strike affidavit of indebtedness. I can trully say that right now I have a serious case of bubble guts!!!!!!!!!!! I would appriciate any thoughts or suggestions of points I should bring up during the oral arguement
  23. My question is, should I sign this? STIPULATED ORDER TO STAY PROCEEDINGS PENDING ARBITRATION (blank spots here to fill in court name dates and judge name.) The parties hereto, having stipulated to the entry of this order, and the court being advised in the premises: IT IS ORDERED that all proceedings in this case shall be stayed for 30 days from the entry of this order for the defendant to file for binding arbitration and pay the initial filing fee. IT IS ALSO ORDERED that the defendant is to provide written proof to Plaintiff's counsel immediately upon filing for Binding Arbitration and the payment of the initial filing fee but in any event no later than 30 days from the date of this order. IT IS FURTHER ORDERED that this case shall be set for a pretrial conference 45 days from the date of the entry of this order and shall be dismissed without prejudice upon the defendant providing proof of filing for arbitration and paying the initial filing fee. Should the defendant fail to file for arbitration or pay the initial filing fee, this matter shall proceed to pretrial. IT IS SO ORDERED It then has spots for the judge, plaintiffs attorney, and myself to sign. Should I sign and agree to this? If the court had sent me this I would, but since it came from the Plantiffs attorneys I am hesitant to agree to sign something just because they tell me too. What do you all think of this?
  24. Being sued by Cap One. All that is attached to the complaint is a computer print out with name; account number; other generic information in a field marked Placement Information. The next box says Debtor Information. That is all that is attached to the complaint. At the very bottom is a reference note saying https//attorneynet.ncogroup At the pretrial conference, I asked who/what NCO Group is. Their attorney said it's not important, probably just a reference but the law firm follows Fair Debt practices, so disregard. The judge went with this. The judge also said they had 21 days to get in copies of all pertinent statements and account records and verification of subject data. He also ordered mediation, which is on Wed. I still have no documentation other than the original computer print out from the lawyer's office (or NCO). Tuesday is the last day to file any motions. I feel squeezed here. I have nothing to work with other than my word that I don't owe this as they have not given me ANYTHING. What do I do next?
  25. Hello all, This is my first post and I need a little help. I have been summoned to appear in court by LVNV funding llc "assigned" by providian. Debt is under 1500 and I am just sick of them. At this point I wanted to know do I file a debt validation before the court pretrial conference date or what? I am looking for a response date 20- 30 days like I have read about on other post but I can't find one in my summons. It only states that I have to appear on that day with no witness. Do I go ahead and file it with the county clerk where I am requested to show up? Do I actually show up in court with the request of debt validation at this point. This complaint has been filed and the lawyers are actually real, I already checked. I was served yesterday.I am in the state of FL. If I can't do a debt validation at this point what do I do? Any help would be appreciated at this point. I am reading alot of it is starting to make sense. I will get the full picture with a little help... Thank you.