Got a Summons, what does this mean???

[missflorida]

Hi everyone,

We got a summons on monday morning. I am so confused, I don't know what it means. It's under my husband's name only for a providian credit card that was bought by Asset Acceptance.

The plaintif is: ASSET ACCEPTANCE LLC

STATE OF FLORIDA-NOTICE TO PLAINTIFF AND DEFENDANTS: SUMMONS/NOTICE TO APPEAR FOR A PRETRIAL CONFERENCE.

A small portion of the front page reads:

"The purpose of the pretrial conference is to record your appeareance, to determine if you admit all or part of the claim, to enable the court to determine the nature of the case, and to set the case for trail if the case cannot be resolved at the pretrial conference."

What does this mean...

a) Is this going to appear on his credit report as a judgement?

Is it going to be on public records if we settle in the pretrial?

c) What do we do/say in the pretrial?

We had just increased our scores to the mid/high 600's after being in the 500's for a long time. How bad is this going to be?

If it matters, the amount is $2052.24, with $392.81 in interest.

Please anyone can give me advice, I'd really appreciate it.

Thanks.

[LadynRed]

What does this mean...

a) Is this going to appear on his credit report as a judgement?

It will if you ignore the lawsuit and don't show up for the court date.

Is it going to be on public records if we settle in the pretrial?

Probably not.

c) What do we do/say in the pretrial?

You'll be asked if it's your debt and if you say yes, you'll wind up with a default judgment, case basically closed.

ASSet is notorious for buying OLD debts and suing. If this Providian card was last paid on more than 5 years ago, then you have an affirmative defense in the expiration of the statute of limitations for legal action. If it has not been 5 years or more, at the very least you should NOT ADMIT the debt, and ask that ASSet PROVE the debt is yours and that it's valid.

How bad is this going to be?

If you let them win, it will be ugly for sure and a REAL tank on your mediocre scores. The thing with ASSet is, if you FIGHT them, they will almost always back down. They do NOT want you in court, they want you to cower at home, do nothing, and let them walk all over you with a default judgment.

So, you MUST figure out EXACTLY when your DH last paid Providian. The SOL may be on your side and you can tell ASSet to take a hike in the 'glades.

[missflorida]

on the packet they gave us there is a paper that says:

last payment date ON OR ABOUT 01/07/02 which puts the pretrial about 3 weeks before the 5 year SOL, so what to do then?

if we don't admit to the debt, what will happen then? What are our chances of winning? And this might be a silly question, but how do we say it's not ours when it is? Can't we get in trouble?

[IHateCAs]

Check your PMs

[candydandy]

Hi. I did the rounds with Assett and Providian already. I didn't back down.

We went to court the first time in February, and they sent in a substitute lawyer since the one from Birmingham was 'unable to make it'. They asked if I was willing to accept a settlement or default judgement on this case, and I told them NO WAY. I think they were expecting me to not show up in court at all. I showed up with my hands full of folders, and FDCPA Documents to back up MY side.They requested more time to get their docs together and bring in the original attorney from Birmingham.

You'd think they would have all their ducks in a row when going to court, but they didn't. They resheduled, and a few days before it was time to go back to court, they called me and said they were not gonna be in court and had asked the court to dismiss the case.

I thought it might be a trick for me not to show up in court and then they'd be there to collect a default judgement, so I called the courthouse the next day, and sure enough they had asked the court to dismiss the case.

NEVER ADMIT TO what the DC claims. They are always incorrect on SOMETHING, whether it be amounts owed, dates or something! If you admit it, it is the same thing as rolling over and playing dead!

[CarolinaBlueEyes]

Hi. I did the rounds with Assett and Providian already. I didn't back down.

We went to court the first time in February, and they sent in a substitute lawyer since the one from Birmingham was 'unable to make it'. They asked if I was willing to accept a settlement or default judgement on this case, and I told them NO WAY. I think they were expecting me to not show up in court at all. I showed up with my hands full of folders, and FDCPA Documents to back up MY side.They requested more time to get their docs together and bring in the original attorney from Birmingham.

You'd think they would have all their ducks in a row when going to court, but they didn't. They resheduled, and a few days before it was time to go back to court, they called me and said they were not gonna be in court and had asked the court to dismiss the case.

I thought it might be a trick for me not to show up in court and then they'd be there to collect a default judgement, so I called the courthouse the next day, and sure enough they had asked the court to dismiss the case.

NEVER ADMIT TO what the DC claims. They are always incorrect on SOMETHING, whether it be amounts owed, dates or something! If you admit it, it is the same thing as rolling over and playing dead!

They do hate it when one fights back they were just looking for an easy default.. I am so glad you never gave it to them

[LadynRed]

last payment date ON OR ABOUT 01/07/02 which puts the pretrial about 3 weeks before the 5 year SOL, so what to do then?

For one thing.. Do NOT take that date as gospel !! Verify the last payment date YOURSELF with whatever records you have. Check your credit reports, but don't just accept what THEY put in their papers.

Do NOT ADMIT the debt is yours. MAKE THEM PROVE IT ! The point here is, they CAN"T 99% of the time. They don't buy the documentation that goes along with an old debt like this, they have NOTHING.

[missflorida]

Ok. so we will not admit it's our debt.

When we go to court, what do we actually say? "It's not mine"?? Then should I stay quiet and let the burden be on them to prove it, or what exactly should he say? solrry for all the questions, but I'm just not sure what my DH should say exactly.

We dont' really have records of payments since it's so old, so I am not sure what my husband should bring with him. I will be checking this weekend credit reports to verify date of last payment.

Also, my husband had some fraud on his credit a while back for a Sprint Cell phone and all his reports have a fraud alert, would this help at all to bring up?

Any advise?

[missflorida]

I checked DH credit report and they are correct about jan 2002 being the last payment we made. I really have no other records like bank statements to go by.

1. So, what now? SOL would have been on jan 2007, correct? (I'm in FL)

An interesting thing happened yesterday, we received a letter from Asset allowing us to setup a payment plan! Not a special letter, but the usual letters they send to collect money. Is it a coincidence they send that letter a week after we get summoned?

What do we do?

[IHateCAs]

Check your PMs

Bump.

[momof5]

Please read the case law showing that CC's in FL (Providian is a cc) SOL is 4 years not 5. You show up, tell the judge that the action is barred by the statute of limitations.

Asset will try to assert that it is a 5 yr SOL, you show up with the case that used 4 yr. The judge will either set it for trial or dismiss it then and there.

[missflorida]

I'm sorry for so many questions,

The case I can just print it out from the copy that's here?

Also, do we tell the judge first about the 4 yr SOL and then if that doesn't work, try the "it's not mine", or we do one or the other? Sorry, this is all a bit confusing.

[missflorida]

anyone?

[LadynRed]

STORE cards were deemed to be 4 years. A MC or Visa would not be a 'store card'. If it was a store card backed by Providian, then it would be 4 years.

[missflorida]

HI again,

It was a Visa I believe. I really have no paperwork on this credit card anymore but I know for sure it wasn't a store CC, so the SOL is still 5 yrs not 4, I guess.

One more question, I've been trying to figure out what exactly my husband is to say when in court. He's an awesome salesman and can sell ice to eskimos but has absolutely no idea about credit scores, repairs, SOL's. I'm trying to coach him but I don't really know myself how exactly he is to deny that is his debt? How does he do that? How does he request they prove it's his without sounding snotty?

THanks so much.

[E. Normis Debtor]

In Florida, it will depend greatly on the documents they produce as to which SOL applies.

Contract action is not founded upon written instrument, for purpose of statute of limitations, where written instrument is link in chain of evidence to prove cause of action, but does not on its face establish all elements of plaintiff’s claim.” ARDC Corp. v. Hogan, 656 So.2d 1371 (Fla. App. 4 Dist. 1995), review denied 666 So.2d 143.

You'll want to bone up on Recovery v. Fernandez.

[luv2bhappy]

You're a hottie E.

[E. Normis Debtor]

I get that a lot. Wish I'd have been born smart instead of good looking

[missflorida]

In Florida, it will depend greatly on the documents they produce as to which SOL applies.

Contract action is not founded upon written instrument, for purpose of statute of limitations, where written instrument is link in chain of evidence to prove cause of action, but does not on its face establish all elements of plaintiff’s claim.” ARDC Corp. v. Hogan, 656 So.2d 1371 (Fla. App. 4 Dist. 1995), review denied 666 So.2d 143.

You'll want to bone up on Recovery v. Fernandez.

Sorry if I'm ignorant but I have no idea what that response means.

I still dont' know what we say when we get there. Please help me.

[mparksmagic]

I still dont' know what we say when we get there.

IMO, if you know the debt is yours, try to settle out of court, you'll save a lot more money than if you lose, usually they will take a smaller amount, just request from their attorney in writing that the listing will be deleted from your CR once settled.

If you want to fight it, You will have to look up the process of your courts but this is the way it works in my state, you appear before the judge, he asks if it is your debt, you say one of the three: YES (judgment entered, you pay), NO (case proceeds and you better have documented evidence that the debt is not yours, can we say P-E-R-J-U-R-Y?), I DONT KNOW, I havent seen proof that it is. (ONLY SAY THIS IF YOU DONT KNOW AND HAVEN'T SEEN PROOF) it could be considered perjurious. Here in TN the judge will then make whats called a "docket call" this gives an opportunity for the defendant and plaintiff to go to the hall and talk things over to settle. You go back in before the judge and he asks if you have settled, plain and simple. yes or no. if no, the trial proceeds. If yes.. Case dismissed.

I personally dont advocate denying your debt that you know is valid, just pay up. But you can just make them work for it to prove its yours. Likelihood is they will have a copy of a valid contract, and you will get a judgment entered against you if you go in there not knowing what to say (all depending on them actually showing up). All in all, I suggest you seek legal advice if you want to go in (or out as in your case) fighting. Google legal aid in your state, your state may have pro-bono programs if you meet certain income requirements. For instance, my city has free legal consultation clinics sponsored by volunteer attorneys who are getting community service hours for the time they spend with you.

Also, do we tell the judge first about the 4 yr SOL and then if that doesn't work, try the "it's not mine", or we do one or the other? Sorry, this is all a bit confusing.

If you do both, the judge will probably laugh in your face and enter the judgment against you. If its yours, I suggest not saying its not, especially if you bring up SOL, that just shows you know about the debt and how old it is, judges aren't really that stupid and its not as easy as it looks. However IF you can honestly say you dont know what the debt is and prove you dont know (never recd collections notices, dv'd the collector, etc.), then you can ask for proof of the debt, it will then be their burden to prove its yours, this can be ugly if they can prove its yours (especially if your husband is unexperienced in the courtroom, it doesnt matter how good of a salesman he is, judges dont buy bulls*it and hate people who try to sell it, grounds for immediate judgment against you). If you still are thinking about fighting it, look up the court docket and find what judge will be hearing your case, then see if you can find other cases that that judge has heard and his decisions, you can get somewhat of a feel for what the judge is like and how he reacts to certain things, just takes a little homework.

Have you DV'd anyone prior to the summons? If not, its too late and you dont really have a case, and you will probably lose if the plaintiffs attorney shows.

All in all, get a lawyer if you even want a chance in the courtroom. Regardless, its my belief from what you say that you should just settle the debt, not fight, others may disagree but you admit THIS DEBT IS YOURS, this is the much easier alternative, as I said above, try to get them to give you something in writing saying the record will be deleted from the CR if you settle. You said you just recd a collections notice after the summons. Its rare, but sometimes collectors will settle for less than 20% of the original debt.

BTW, why are you doing all of your husbands work? You wont be able to talk in court anyways.

[the aussie]

Sorry to hijack thread but I am confused. From everything I have read, I was under the impression that sol is 4 years from DOLA in Florida for open accounts (cc's fall in that category here. Can someone point me to case law that contridicts that?

Thanks