hudserby

Need answer letter to summons for SOL debt

Recommended Posts

Hi,

I'm being sued by a Lawyer for a debt that I'm certain is way past statute of limitations. I need to send an answer, but I'm not sure which template to use. I'm a little confused by all the information here.

Here's the info:

1. Who is suing you? Palasades Collection, LLC

2. For how much? $2551.86

3. Who is the original creditor? Chase Manhattan Bank

4. How do you know you are being sued? served with papers

5. How were you served? Were you served? My wife was served at home

6. What was your correspondence (if any) with the people suing you before you think you were being sued? I received letters and calls. I sent a certified letter asking for proof/details of the debt, verification of any judgement, of license to collect, that SOL has not expired, etc. I also asked not to be contacted by phone. I continued to get the same exact collection letters and calls. None of my requests were addressed.

7. Where do you live? California

8. When is the last time you paid on this account? Don't know, but more than 6 years ago.

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or B) looking it up online (many states have this information posted daily). I have to respond to the court and plaintiff with an answer letter.

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) With the collection agency. There is no reference to the debt in my credit report.

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. Yes.

12. Does your summons require a response? (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? It does require a response. There's no questionaire.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? No evidence, no attachments.

14. What is the SOL on the debt? To find out: 6 years

Link to post
Share on other sites

What kind of account was it?

Longest SOL in California is 4 years (as far as I know). Written contracts are 4 years.

Countersue for FDCPA and Rosenthal FDCPA violations -- you should be able to pocket $3500 ($1000 federal, $2500 state) for that.

Sorry, I've never done ANYTHING in state court. Is it limited jurisdiction? Did you send your dispute to them within thirty days of your receipt of their initial communication?

Oh, and...if you haven't yet pulled copies of your credit report, do so now.

Link to post
Share on other sites
What kind of account was it?

Longest SOL in California is 4 years (as far as I know). Written contracts are 4 years.

Countersue for FDCPA and Rosenthal FDCPA violations -- you should be able to pocket $3500 ($1000 federal, $2500 state) for that.

Sorry, I've never done ANYTHING in state court. Is it limited jurisdiction? Did you send your dispute to them within thirty days of your receipt of their initial communication?

Oh, and...if you haven't yet pulled copies of your credit report, do so now.

I'm not even sure what kind of account it is. They never told me what it was. I'm guessing it was a credit card account.

I just sent my response in today certified mail-return receipt, and it's within the 30 days (I have another week). I created a document using some of the examples here. I hope it's OK.

I just sent the dispute today using

Link to post
Share on other sites
I wouldn't suggest using a template. I mean, use one, but come up with your own wording. It will make you stronger.

I completly agree. If you use a scratch template, many CA's have already got that same one from other consumers like you, most likely they take it as an empty threat and will just file suit as soon as they recv it. (coming from past exp.)

Suggestion being, merge a few templates together, but use your own words, repost it and ask for advice. You'll get plenty of it.

Link to post
Share on other sites

If you've been served, you need to file a proper Answer to the Complaint -- and a validation demand is NOT part of an Answer ! You need to file your answer within the time limit, it cannot be in a typical letter format, and you must address ALL of Palisades' allegations. Your answers should be affirm, deny, or lack sufficient knowledge - and for a debt this old AND past the SOL I'd deny virtually everything. In addition you MUST assert the affirmative defense of the expired SOL or you lose the right to ues it completely.

Link to post
Share on other sites
If you've been served, you need to file a proper Answer to the Complaint -- and a validation demand is NOT part of an Answer ! You need to file your answer within the time limit, it cannot be in a typical letter format, and you must address ALL of Palisades' allegations. Your answers should be affirm, deny, or lack sufficient knowledge - and for a debt this old AND past the SOL I'd deny virtually everything. In addition you MUST assert the affirmative defense of the expired SOL or you lose the right to ues it completely.

I already sent in the answer. Basically a modified template. I probably did it wrong. Can I send another one or is it too late? This is what I put in it:

FIRST AMENDED ANSWERS,DEFENSES AND COUNTERCLAIMS,

Defendant, appearing pro se, for its reply to the Complaint for Money $2,551.86 states as follows: All Answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein.

ANSWERS

1. In response to paragraph #5, the Defendant disputes the alleged debt, as solicited in paragraph #5 of the complaint.

2. In response to paragraph #10, the Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

3. In response to paragraph #13, to the extent a response is required, defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

DEFENSES

4. As and for a First Defense

Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

5. As and for a Second Defense

Defendant alleges that this action is time-barred under §337 of the laws of California

6. As and for a Third Defense

Plaintiff admits to purchasing the defaulted debt allegedly owed by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

7. As and for a Fourth Defense

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.

8. As and for a Fifth 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.

9. As and for a Sixth Defense

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

10. As and for a Seventh Defense

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

11. As and for an Eighth 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

12. As and for a Ninth 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.

13. As and for a Tenth 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.

14. As and for an Eleventh Defense

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

15. As and for a Twelfth 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.

16. As and for a Thirteenth Defense

Defendant invokes the Doctrine of Unclean Hands as the Defendant alleges that the Plaintiff or the person or entity that assigned the alleged claim to Plaintiff acted in a dishonest or fraudulent manner with respect to the dispute at issue in this case.

17. As for a Fourteenth Defense

Plaintiff has failed to name all necessary parties.

18. As for a Fifteenth Defense

Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

COUNTERCLAIMS

FIRST CAUSE OF ACTION

Statement of Facts

19. April 1, 2006, Defendant sent Patenaude & Felix, A.P.C, by way of certified mail, request for validation of alleged debt, including a questionnaire about said debt and a request for documentation. Attached is a copy of the letter, and the certified mail receipt.

20. Up until the date of this filing, no attempt at validation was received from Patenaude & Felix, A.P.C., yet they continued to collect on alleged debt.

Statement of Claim

21. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the Fair Debt Collection Practices Act (hereafter “FDCPA”) in the following respects:

(a) by failing to cease collection of an alleged debt after the Defendant notified Plaintiff in writing that the alleged debt was disputed, therefore violating 15 USC 1692g(B).

NOW THEREFORE, DEFENDANT PRAYS FOR THE FOLLOWING RELIEF:

PRAYER FOR RELIEF:

22. That based on the allegations of paragraph 1-21, this hearing be dismissed

FURTHER, sayeth naught.

Link to post
Share on other sites
I already sent in the answer. Basically a modified template. I probably did it wrong. Can I send another one or is it too late? This is what I put in it:

FIRST AMENDED ANSWERS,DEFENSES AND COUNTERCLAIMS,

Defendant, appearing pro se, for its reply to the Complaint for Money $2,551.86 states as follows: All Answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein.

ANSWERS

1. In response to paragraph #5, the Defendant disputes the alleged debt, as solicited in paragraph #5 of the complaint.

2. In response to paragraph #10, the Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

3. In response to paragraph #13, to the extent a response is required, defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

DEFENSES

4. As and for a First Defense

Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

5. As and for a Second Defense

Defendant alleges that this action is time-barred under §337 of the laws of California

6. As and for a Third Defense

Plaintiff admits to purchasing the defaulted debt allegedly owed by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

7. As and for a Fourth Defense

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.

8. As and for a Fifth 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.

9. As and for a Sixth Defense

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

10. As and for a Seventh Defense

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

11. As and for an Eighth 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

12. As and for a Ninth 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.

13. As and for a Tenth 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.

14. As and for an Eleventh Defense

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

15. As and for a Twelfth 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.

16. As and for a Thirteenth Defense

Defendant invokes the Doctrine of Unclean Hands as the Defendant alleges that the Plaintiff or the person or entity that assigned the alleged claim to Plaintiff acted in a dishonest or fraudulent manner with respect to the dispute at issue in this case.

17. As for a Fourteenth Defense

Plaintiff has failed to name all necessary parties.

18. As for a Fifteenth Defense

Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

COUNTERCLAIMS

FIRST CAUSE OF ACTION

Statement of Facts

19. April 1, 2006, Defendant sent Patenaude & Felix, A.P.C, by way of certified mail, request for validation of alleged debt, including a questionnaire about said debt and a request for documentation. Attached is a copy of the letter, and the certified mail receipt.

20. Up until the date of this filing, no attempt at validation was received from Patenaude & Felix, A.P.C., yet they continued to collect on alleged debt.

Statement of Claim

21. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the Fair Debt Collection Practices Act (hereafter “FDCPA”) in the following respects:

(a) by failing to cease collection of an alleged debt after the Defendant notified Plaintiff in writing that the alleged debt was disputed, therefore violating 15 USC 1692g(B).

NOW THEREFORE, DEFENDANT PRAYS FOR THE FOLLOWING RELIEF:

PRAYER FOR RELIEF:

22. That based on the allegations of paragraph 1-21, this hearing be dismissed

FURTHER, sayeth naught.

I am not an expert on format until it is proven. However, you can always amend your motion and refile it.

Link to post
Share on other sites

I got a letter on Sat. Saying that my answer was rejected.

1. The fee is $180.00

2. It did not conform to "Rule 201", which is a list of requirements including:

-Recycled paper must be used

-Lines numbered

-Holes punched

-Size of paper, type, type style must conform.

They sent a "pleading rejection sheet" with all the details I needed to address. I had gone down to the court in person to request some form like this, but they said they didn't have anything like that, and to "just copy the format of the summons". They also didn't tell me that there would be a $180.00 fee. Now It's past the 30 days. Can I resubmit it? Maybe I should just get a lawyer. Any recommendations for Los Angeles, CA?

Link to post
Share on other sites

There's a filing fee because you've got counterclaims. It's the fee for opening a lawsuit.

I'd just print it out, send a letter stating it's on recycled paper (all California state and federal pleadings need to be on recycled paper).

KEEP the pleading rejection sheet, because if you get hoodwinked for the 30 days it's your backup evidence that you did try to file an answer.

Link to post
Share on other sites
There's a filing fee because you've got counterclaims. It's the fee for opening a lawsuit.

I'd just print it out, send a letter stating it's on recycled paper (all California state and federal pleadings need to be on recycled paper).

KEEP the pleading rejection sheet, because if you get hoodwinked for the 30 days it's your backup evidence that you did try to file an answer.

I ended up finding (after going to 3 different stores) some recycled paper. I will post everything in the sheet they sent me so someone else can get some use out of it.

Link to post
Share on other sites

So, I sent the re-done answer letter (on 100% recycled paper) on Tues. Today (friday) I get a filled out CM-110 form from the collection agency's lawyer. I guess that means there is a Case Management meeting at 8am on Tuesday 12/20. Is this when the date for the hearing is set? Do I need to be prepared for this in any way other than bringing all the correspondences and postal receipts?

Link to post
Share on other sites
LMFAO. ****ing hippies.

Okay, I am from Cali and of course it seems natural for me that the courts would want all pleadings on recycled paper. So, I am a little offended with that comment. Secondly, I buy recycled paper all the time at the office supply store. It never takes me three trips to find recycled paper. Maybe the original poster lives in an area without OfficeMax/OfficeDepot/Walmart/Target/Staples, etc, etc,.............. Just my 2 cents.

Remember people: Relax, Relate, Release:p

Resse4JC

Link to post
Share on other sites
Guest
This topic is now closed to further replies.