How to reply to summons?

[imjustagoyle]

DH received a summons that we must now reply to by Dec 31. We live in the state of Florida.

We plan on filing bankruptcy - since we cannot pay this debt - however, we are not able to do that prior to the end of the 20 day window required for a response.

I've seen the sample response letters, but they are mostly for California law (ones that I've seen).

They have provided a copy of the signed check that my DH cashed so DV has already been shown (I believe?). HELP! I need to at least reply to buy some time until we can file BK.

[admin]

Read this...

http://debt-consolidation-credit-repair-service.com/phpBB2/viewtopic.php?p=145187#145187

[imjustagoyle]

Thank you. I did read all of that, but some of it is over my head. For instance, we are going to deny Count 1 and 2 of the complaint, and plan to dispute the amount.

This is how the complaint reads:

Count I:

1. This is an action for damages that does not exceed the sum of $15,000.

2. The Personal Credit Line Account Agreement - Fixed Rate dated January 4, 2002, made by the defendant(s) and payable to the Plaintiff has been lost or destroyed and is not in the custody or controll of the Plaintiff.

3. Plaintiff and Defendants(s) are the only person known to the Plaintiff who are interested for or against the re-establishment.

Wherefore, Plaintiff demands judgement re-establishing the Personal Credit Line account Agreement-Fixed rate.

OK TIME OUT - What does this mean? Does this mean they lost or destroyed the paperwork declaring the agreement between us? If so, what case do they have? This is lawyer speak and it confuses me.

Count II:

4. This is an action for damages that does not exceed the sum of $15,000.

5. On January 4, 2002, the Defendant(s) executed and delivered a Personal Credit Line Account Agreement-Fixed Rate to the Plaintiff.

6. The Defendant(s) executed a document which is attached hereto. Subsequent to the execution of the document, the Defendant(s), with the Plaintiff's consent, took additional advances above the original credit limit and received additional sums which are still due and owing. The last additional advance was taken on March 21, 2002.

7. The Defendant(s) owe Plaintiff the principal sum of $5606.88 that is due with interest in the amount of $1,181.92.

8. Pursuant to F.S. 687.06, Plaintiff hereby requests statutory attorney's fees of ten percent (10%) of the principal amount, to-wit: $560.68 be awarded.

9. Plaintiff has made demand and the Defendant(s) have failed to pay same.

Wherefore, Plaintiff demands judgement for damages against the defendant(s) for the sum of $5606.88, plus costs, interest and $560.68 attorney's fees.

[imjustagoyle]

How's this for a response???

December 22, 2004

County Court, Hillsborough County, Florida

RE: Case no: xxxxxx

Beneficial Florida, Inc.,

A Corporation F/K/A

Plaintiff

v.

(name omitted) Defendant(s)

In response to Case No. xxxx, (Defendant) hereby DENIES this complaint.

Regarding Count I, Defendant denies any such agreement exists or existed.

Regarding Count II, Defendant denies any advance amount taken over and above the original agreed upon amount, which is shown by the copy of the document attached to the summons. So therefore, Defendant denies that the requested judgment amount is correct and requests that an accurate account of these amounts be provided.

Sincerely,

Defendant

[imjustagoyle]

Anyone?? Can anyone tell me if that reply is ok??

[admin]

I would amend it to read:

Defendent again denies any agreement or debt existed, so denies all parts of Count II.

I'd also maybe put in some counter claims if you feel like it....

cm_chase did an excellent job with her defenses...

http://debt-consolidation-credit-repair-service.com/phpBB2/viewtopic.php?t=22830

[imjustagoyle]

Yeah, I'm not sure I have the time to put in that kind of response and we aren't necessarily denying the debt (after all, my husband's signature is on the cashed check they attached to the summons), however, we never took any advance over and above that and I want to see a declaration of how they came up with their numbers....

Thanks for the tip!

So eliminate paragraph II and add your statement or just amend it to include your statement?

[admin]

Well, you need to MAKE time. (It's not that much of a hassle.) Plus you need to get this right. We'll talk about bankruptcy later. I would advise against it.

What I've written will help you if you are being sued by a collection agency. Are you????

OK, I would say that you never haven't a) seen any documentation showing that the debt was not ever repaid in full - one cashed check is not any kind of proof of anything. the complete payment history, starting with the original creditor.

I would deny all of Count II as below.

Put as your Defenses (copied directly from the last post) - they are ALL applicable:

Beneficial Florida, Inc.,

A Corporation F/K/A

Plaintiff

v.

(name omitted) Defendant(s)

In response to Case No. xxxx, (Defendant) hereby DENIES this complaint.

1. Regarding Count I, Defendant denies existance of the account. Defendant has not been provided with a complete payment history, not provided with an original contract between Defendant and Plantiff. Cancelled check provided is not proof of anything.

2. Regarding Count II, Defendant denies existance of the account. Defendant has not been provided with a complete payment history, not provided with an original contract between Defendant and Plantiff. Cancelled check provided is not proof of anything. So therefore, Defendant denies that the requested judgment amount is correct and requests that an accurate account of these amounts be provided.

Defenses:

As and for a First Defense

3. Plaintiff's Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

4. As and for a Second Defense

Defendant claims a Failure of Consideration as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

5. As and for a Third Defense

Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

6. As and for a Fourth Defense

Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parol Evidence Rule.

7. As and for an Fifth Defense

Plaintiff's Complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

8. As and for a Sixth Defense

Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

9. As and for a Seventh Defense

Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

10. As and for an Eighth Defense

The Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

11. As and for a Nineth Defense

Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits.

Sincerely,

Defendant

[bigdaddyroy]

If you can help it, please do not file a BK, UNLESS it is defintely your last resource. I am a pre-law student in Illinois and recently completed an assignment where a panel of 50 BK attorneys were polled. 45 out of 50 attorneys stated that their clients really did not need to file. There were other alternatives that would have resulted in a better outcome. Just my 0.02 cents. Remember, no attorney will ever turn you down, especially if they can get the retainder.

[admin]

If you can help it, please do not file a BK, UNLESS it is defintely your last resource. I am a pre-law student in Illinois and recently completed an assignment where a panel of 50 BK attorneys were polled. 45 out of 50 attorneys stated that their clients really did not need to file. There were other alternatives that would have resulted in a better outcome. Just my 0.02 cents. Remember, no attorney will ever turn you down, especially if they can get the retainder.

Roy, I couldn't agree more.

[imjustagoyle]

I'd love to avoid BK if possible.

I really DO appreciate the advice on this, it is IMMENSELY helpful.

We are being sued by the original company to whom the debt is owed, not by a collection agency - does that matter?

Again, thanks SO MUCH.

[admin]

Yeah, it makes a difference if they aren't a collection agency. It's pretty amazing, though that they admitted that they don't have a copy of the contract even. Wow!

Amend what I said as follows (look for the bold type):

As and for a First Defense

3. Plaintiff's Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not available for admittance into evidence. Therefore there is no contract signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

Remove former 3 thru 11 items, add instead

4. As and for a Second Defense

Defendant alleges that Plaintiff's Complaint, and each cause of action therein is barred by the Doctrine of Estoppel, specifically Estoppel in Pais.

5. As and for a Third Defense

Should such contract as in Count I be produced, no payment history and account records have been provided, so no accurate accounting of the alleged debt can be made.

6. As and for a Fourth Defense

Defendant alleges that Plaintiff's actions are precluded, whereas Plaintiff's demands for interest are usurious and violate state and federal laws.

5. As and for a Fifth Defense

Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them.

6. As and for an Sixth Defense

Plaintiff failed to comply with normal and accepted business practices.

7. As and for a Sevent Defense

Plaintiff’s claim is in violation of federal statute.

Kristy

[imjustagoyle]

Great stuff Kristy, your help is much appreciated.

I'm pretty amazed they are even trying to sue without a contract! I'm hoping this gets the whole thing dropped, although not knowing anything about this sort of thing, I kind of doubt it will. I don't want to have to file BK (or my husband in this case).

[admin]

I'm pretty amazed they are even trying to sue without a contract! I'm hoping this gets the whole thing dropped, although not knowing anything about this sort of thing, I kind of doubt it will.

Don't say stuff like that. Of course you'll win. They don't really have anything. You just have to have all of your i's dotted and t's crossed. Or at least most of them.

[imjustagoyle]

Well you've given me more hope than I had when I first got this thing for sure! I thought at first BK was the only way out. Now there is hope!

Thanks again.

[LadynRed]

I'd be interested in knowing what those 45 BK attorneys THINK are better solutions to bankruptcy.

[imjustagoyle]

Well the response was filed and now the attorney says if we aren't making payment arrangements, they will pursue a court date and judgement. I laughed and told the attorney's assitant, good luck getting that without a contract! In the summons it stated that the contract was either lost or destroyed, so what case do they have really? I told this woman, "The debt has not been validated." Her response, "So you didn't spend this $8000?" I repeated, "The debt has not been validated." She said, "OK, I'll make notation to go ahead and proceed then." GOOD LUCK WITH THAT! I told her.

[admin]

Good for you!!