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techgoddess

how to respond to a summons

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For those of you who didn't see my last post, here's my current situation. I just got a summons from Discover yesterday and I've got 30 days to respond. I want to settle with these guys but I don't want to admit to anything and have them automatically have a judgement on me. The collection agency/lawfirm suing me never validated the debt but it's been in collections with these guys since 2000. I while back I even made payments to them (about $750 bucks worth.) Does that mean that they don't need to validate? Can I just send them a debt validation letter and then respond to the court saying that they haven't validated the debt to buy some time?

What if I just send them a letter offering to settle out of court? What should my response to the court be in that case? I don't want to say that the debt's not mine because I don't want to get myself into more legal trouble.

[Edit by techgoddess on Tuesday, April 1, 2003 @ 11:58 AM]

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If you don't want a default judgment, then file you Answer and DENY at least something on the Complaint. You can use 'lack knowledge' and that will aid you with the non-validation issue. You can't bring up lack of validation itself in your answer, but you CAN bring it up in court. If the judge asks 'is this your debt' you say "I don't really know, they haven't validated per the FDCPA", etc. Provided they still drag you into court, that is.

You can offer the atty a settlement prior to court, just get all your terms in your settlement offer and get signatures before you pay them.

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So, I should respond to the summons denying something (I'm thinking the amount because I actually have proof that I owed $3000 when it was charged off and they're saying I owe $4000.) Then should I send a letter requesting validation first or should I send a letter to offer a settlement? Does anybody know about how much I should offer initially? I heard somewhere that you should start by offering 30%. Is that too low?

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Yes, deny something in your answer, the amount is a perfect one to disagree with.

As for settlement and validation, its not entirely too late for validation, so you CAN do that, send it to the suing attorney. However, the court date will probably come long before the attorney does anything about your validation demand. The only effect it would have would be for you to say you requested validation and have not gotten anything from the lawyer proving you actually owe the debt.

A settlement offer, on the other hand, would be an admission that its yours and you owe the money. If this collection has been floating around for a few years, I'd start off at like 20% and know what your TOP limit is percentage-wise. This gives you negotiation room and you may get out from under for far less than what they would get in court.

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Cool, thanks. I'll probably go ahead and offer a settlement then. I really don't want to go to court and deal with these people (I'd rather just pay them and get them off my back.) Does anyone know the procedure for answering a summons in california?

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Read Code of Civil Procedure section 431.30 and see if you can file a "general denial":

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=431.10-431.70

If so, here is a link to the form. You should make sure that this is the current form in use (call or visit your law library):

http://forms.lp.findlaw.com/form/courtforms/state/ca/ca000181.pdf

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Bumpy-bump!

I'm still trying to figure out how to file the answer to my summons. I'm trying to get a lawyer but I'm running out of time so I'm going to try to file it myself. Do I send it to the court, Discover, Discover's lawyer, all three or some combination? Is there a fee to file this with the court? Can I mail it? I'd like to get this sent off today but I'm not sure how to go about it.

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Thanks! Now, to file the answer with the court clerk, can I just send it certified mail or should I just hand deliver it to the court? Does anyone know what the procedure in California is?

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Another Question:

I'm still working on my answer. I received from Discover's attorney/CA partial validation (no contract, no signature, just photocopies of my statements.) Should I say in my answer that they failed to validate the debt? Should I send them another validation letter?

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It is better to go to the clerk's office and file it yourself. Bring along an extra copy so the clerk can stamp it and you will have a stamped copy for your file. You will need to serve (send a copy) to the plaintiff's lawyer. You will also need to pay a "first appearance fee" (although if you don't have enough money, it is sometimes possible to get a fee waiver). Call the clerk to find out how much the fee is and what type of payment they accept.

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TechGoddess,

I am in excactly the same spot as you. In california and I have 2 days to answer a summons for limited civil suit.

Im going this morning to meet with a man who says he can help...and I hope he's right because Ihave very little time left.

I have questions about how to fill out the answer and hope he can answer them for me.

Ill let you know how it goes.

Feel free to email me.

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2 days for me too...and I havent even started the answer.....im in l.a.

havent found an attorney. Ill meet with an accountant tomorrow, and he says he can help me do an answer.

Ugh...

Just got a call from a diferent Lawfirm about a whole different new lawsuit to freak about.

What a great day.

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I have one more quick question before I do anything with this answer I have written:

Which do I do first, file the answer with the court or send the answer to the plaintiff's attorney?

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bump

It would be super-cool if someone could clue me in on this. I'm leaving to take this to the court in 5 minutes!

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Hi I am in the same situation with PROVIDIAN Bank. If I read this correct I should deny the debt. then offer a settlment starting at 20%...

Should I go over the colecters head and offer directly to PROVIDIAN?

and also should I offer a settlement before I enter my answer.....

Thanks,

James

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Hi James

Definitely file an answer. Don't do what I did and wait until the last minute. You can either

try to settle first or file your answer first, either way. I sent a validation request (and they

haven't validated completely.) In the answer you can deny everything, deny something (like

the amount) or play stupid (which is what I did)

My answer said: Defendent lacks knowledge about the truth and therefore denies each and

every allegation of the plaintiff's complaint

Which basically means that I haven't seen proof (which is true.) You can also list your

defenses (I couldn't figure out how to do that so I left it blank) and you can fill out a cross-

complaint (which I didn't do either)

My plan is to settle with these guys before it goes to court. The answer just buys some

time. You can check out my other post which tells of my adventures at the court house

http://www.debt-consolidation-credit-repair-service.com/cgi-local/cutecast/

cutecast.pl?forum=18&thread=5767

Good luck!

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OK you guys, I'm really,really interested in both of your cases because, I've been their, done that.

Read some of my posts, ADSOFT and CITIBANK.

I've done some research on this for a month AND I WISH I WAS IN YOUR SPOT, i.e. prior to judgement.

These are your defenses:

#1) could they validate the judgement?

#2) how did they serve you: If they served you incorrectly, they can get a judgement and you can vacate it.

#3) Did you try to settle: Have you sent them a letter.

#4) Have you made some payments

#5) Are they over charging you

Now, this is what happend to me. CITIBANK could not validate my card. These bozo's even put it in the lawsuit, I have the papers that say they can't validate.

When I went to court, I got greedy and thought that I didn't have to pay because they did not have a contract.

The judge asked If I wanted to settle, I said No Way (Big mistake)

Be ready to settle, but make sure you don't get a judgement.

The other lawyer will try to talk to you before the case and you guys might reach an agreement before going into trial.

I think this is your best time to negotiate. Do your home work. Say, He Mr. Bozo Lawyer, you guys cant validate, I have a registered letter here that states that, I made payments, where do you come up with these numbers.

Tel the lawyer:

I happen to have a settlement letter right here I'm offering you 30% and state you are going to drop charges. Otherwise, I'm going to get a lawyer and sue you and DISCOVER or who ever for malicious prosectution, defimation of character and Emotional distress, and for ruining my credit, In Superior court and have several lawyer willing to take my case (Call the local Attorney referal agency in your area, and tell them you are need advice, you are going to try to settle your self. If they take advantage of you, will they counter sue) And, I'm not a lawyer, but if you been paying to a collection agency and he put on paper all this BULLSHIT, that you haven't paid any money, court costs, interest fees (hey, am I pissed or what) then I think you have a good case to TURN THE TABLES ON THIS BOZO.

Now, remember, if they can't validate, you have 2 very strong points.

1. They don't have a contract with you

... they are going to say that you used the card and got unjust enrichment.

... at this point you might say, yes maybe I did use the card, but I didn't agree to these terms. So here are my terms, Mr. BOZO.

Anyhow, what I would do at this point, if you are going to answer, is talk to some people and come up with a PRE-TRIAL settlement strategy(Go with your own settlement letter, your offer). Say in the letter you will settle for ...

or you agree to pay so much a month. Don't get a judgement.

If you go to court and loose, have a POST-TRAIL strategy. Try to get the JUDGEMENT VACATED,or leave the door open so that if you have to get a lawyer to help you at a higher level you have a case, do your home work.

... Remember, if you step into court you are in the lawyers' domain and your going to be easy bait.

... So, get something on the lawyer and the creditor to try to reach a settlement out of court. Remember also, that if they are taking you to court, that means, that your bill was uncollectable so they are taking you to court on it. If you own a house, well they figure they are going to get some money sooner or later, because you are going to want to refi. If you do don't own a home, well basically, get ready to pay the highest interest rates for 7 yrs.

Anyhow you have a good chance to settle out of court from what I've read, but you have to build a case that you are willing to pay and that if they are going to step in court room you are willing to up the ANTE(SP., we need a spell checker). You will take it to a higher court and you probably will have no problem getting a lawyer to back you up.

... That's what I would do. As a mater of fact like I said I'm probably going to see good ol CITIBANK in Superior Court if their lawyer doesn't want to settle.

... let me know what happens

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Here's what's goin on with Discover: I sent a second settlement offer and today I got a

phone call at work (very annoying, I oughta flog that lady) from Discover's lawyer saying

that they were rejecting my offer but they had a counter offer for me. They want 60% by

the 16th (I offered 50%). I told her that I'd think about it and get back to her. She said

she'd send out a letter as soon as I let them know. I'm gonna take their offer because I've

got the money (it'll just suck up my whole savings.) Anything to make those guys a

memory. I'm totally happy this is almost over and I won't have to go to court.

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