I've been served with a summons...Short Timeline!! How to answer

[lbr55]

First here are my questions:

If I can get the verbiage right for the "Affirmative Defenses" will this suffice in the "Answer to Complaint"? If I do try to fill out the form myself, do I use any and all affirmative defenses, applicable or not? Or just select a few which may apply?

Would this mean I can proceed without an attorney? Or is it best to bite the bullet and is it a show of strength in my defense if I have an attorney file the written response which I need to do by Wednesday, March 14th, 2007. And at this point should I or would I request some type of evidence of the debt which is not furnished in the complaint or does that come later after I have answered the complaint?

Looking for a little good advice please!

Now the basics and back story in this websites format:

1. Who is suing you? the Law Firm of Blier & Cox in Encino CA

2. For how much? $2,620.00

3. Who is the original creditor? American Express

4. How do you know you are being sued? A summons was served on Feb. 13

5. How were you served? by the Sherriff Were you served? Yes

6. What was your correspondence (if any) with the people suing you before you think you were being sued? NONE

7. Where do you live? San Diego, CA

8. When is the last time you paid on this account? Approx. 2 years ago?

9. What is the status of your case (if anything has been opened)? I've called the County Court Department that was assigned the case, they called back to confirm that the case has been assigned to them but it is NOT on their calendar yet.

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. NO

12. Does your summons require a response?

YES! 30 days from date of serve which would be March 14th, so time is of the essence!

is someone in the state of CA who is familiar with the process and can offer me good advice with respect to the answers I need to provide the court.

If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. No questionnaire

We need to know what the "charges" are.

The official charge is a "Complaint for Money" Also sent is letter from the attorney, the summons, the "Notice of Case Assignment" and the "Civil Case Cover Sheet".

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? None of the aformentioned.

14. What is the SOL on the debt? 4 years

Again, here are my questions:

If I can get the verbiage right for the "Affirmative Defenses" will this suffice in the "Answer to Complaint"? If I do try to fill out the form myself, do I use any and all affirmative defenses, applicable or not? Or just select a few which may apply?

Would this mean I can proceed without an attorney? Or is it best to bite the bullet and is it a show of strength in my defense if I have an attorney file the written response which I need to do by Wednesday, March 14th, 2007. And at this point should I or would I request some type of evidence of the debt which is not furnished in the complaint or does that come later after I have answered the complaint?

Would it be useful for me to attach any of the documents? Ie: Especially the Court form "Answer-Contract" that I need to fill out?

Thanks!

[Crediwizard808]

You should answer the summons and do go to court, if you do not they will get a default judgement, then come after you.

Go to court and your stance is a "not mine" attitude, the reason is you have NO legal obligation to pay the collector be it a firm or an attorney, do not be afraid, the burden of proof is on them because they need to prove thier case, you want to see your original signed agreement that allows them to collect or even that makes you responsible, also you want to see signed charge slips that created the so called debt, they need to show all this to arrive at some amount, they just cannot walk in with an amount and make a claim, so you stay strong, personally if you think you cannot do it, go to NACA.net and find a local attorney to rep you, it will cost maybe a grand, let them fight for you and thats that, if you have confidence to go and fight, then you do it on your own and again its not yours until they prove it, I AM NOT AN ATTORNEY and this is NOT LEGAL ADVICE just a personal opinon.

[lbr55]

Thank you for the advice which will come in handy later on but for now, first things first.............I need to follow proper court procedures which means I first need to file a written response on the court form and this I HAVE to mail no latter than March 14th which is approaching rapidly. I need to know how to 'properly' fill out that form and I suspect I need either an attorney in the state of CA or someone who has recently been through a summons with a "Complaint For Money" in the state of CA.

Is anyone out there who fits the bill?????????

Almost Desperate!

[vialna]

you need to read your rules of civil procedure for your state...google

rules of civil procedure, your state...this should tell you how you need to answer the summons for your state...here is a great site that has lots of info already there for you...

when you file your answer. you need to use affirmative defense...if you dont then your not questioning the complaint...

heres the site.

http://whychat.5u.com/

there is alot of info here rules for civil procedure..how to answer a summons

ect...hope this helps...v

[lbr55]

In my searching of this forum, I was able to find this suggested reply:

( I don't think it applies to my case because I am not denying the money owed.) I am thinking along the lines of "Defendant prays..........." type of response.

Defendant reserves the right to amend these answers as circumstances require."

Defendant, by himsself, answer the complaint herein by showing the court that:

1. Defendant denies every allegation of the complaint

AS AND FOR DEFENSES:

2. The court lacks personal jurisidction over the defendant

3. The court lacks subject matter jurisdiction over the action

4. The plaintiff lacks the legal capacty to bring this action

5. The action is barred by the applicable statute of frauds

6. The action is bared by the applicable staute of limitations

7. plaintiff fails to state a cause of action against the defendant.

Wherefore, defendant asks for a judgment in favor of the defendant dismissing the complaint, together with costs, and such other further and different relief as teh court finds proper here.

________________sign yourname

print your name

address

phone

cc: plaintiff lawyer at his address

court clerk -civil index clerk- under index number

[lbr55]

As far as I understand any person associated with the courts cannot offer any advice on how to fill out this form, only an attorney can, and so far I have not been able to get ahold of one.

This form I've referred to a "Answer to Complaint" for money requires very specific legal language in order to be valid. It is actually sopposed to filled out by an attorney.

[lbr55]

Maybe one of these defenses, but which one?

(Apportionment)

<>. These answering ___s are informed and believe and thereon allege that the matters complained of in the ___ were proximately caused, in whole or in part, by the acts or omissions of a third party or parties or ___s. Accordingly, the liability of the ___s and responsible parties, named or unnamed, should be apportioned according to their respective degrees of fault or other legal responsibility, and the liability, if any, of these answering ___s should be reduced accordingly.

OR.......................

(Modification)

<>. These answering ___s are informed and believe and thereon allege that the contract in question, if any, was modified by the parties, and that ___s are barred from recovery on the unmodified original contract, if any, by reason of said modification.

OR..............................

Failure to Mitigate)

<>. These answering ___s are informed and believe and thereon allege that ___s has failed to mitigate and lessen damages, if any it sustained, as required by law, and are barred from recovery by reason thereof against ___s.

Does anyone know if I am on the right path?

Thanks:roll:

[Crediwizard808]

Go to this site, call an attorney, http://naca.net/ I personally do no think trying to understand what to do in terms of that paper work is the wisest thing, you will get yourself into more trouble, find an attorney that will help you . You let it get to the point that you have a suit, you will need to go setup a court date and fight em in court.

I did a search on that site and in encino is , if your someplace else, then search for one, but start with that and NOT try to do this on your own.

Name: Scott Miller

Organization:

Address:

16133 Ventura Blvd., Ste 1200

City:

Encino

State:

CA

ZIP:

91436

Email:

millaw@sbcglobal.net

Phone:

(818) 788-8081

Fax:

(818) 788-8080

Date Joined:

4/1/2006

[lbr55]

It does seem to be more than a layperson should take on. I just have a real and I believe justified fear of the costs involved to hire an attorney.

[lbr55]

Maybe this will help to figure out the wording?

COMPLAINT FOR MONEY; BREACH OF CARDHOLDER AGREEMENT

Plantiff alleges:

1.Plaintiff is a valid and existing and existing corporation and duly authorized and qualified to do business and doing business in the State of California.

2.The true names and capacities, of defendants named herein as DOES 1 through 5, inclusive, are unknown to plaintiff, who therefore sues said defendants by such fictitious names, and plaintiff will amend this complaint to show their true names and capacities when the same have been ascertained.

3.That at all times each defendant was the agent etc……….

4. The within action is subject to the provisions of Section 395( etc….

5.Defendant is resident etc……

6. Plaintiff and defendants entered into a written credit card cardholder agreement. Etc…..

7.Defendant did breach cardholder agreement etc…..

8.Plaintiff has duly performed all acts necessary on its part to be performed under the terms of said agreement.

9.Neither defendants nor anyone else on their behalf have reported the credit as lost or stolen.

10.That although demand has been made, there is now due, owing and unpaid from defendants, and each of them, the principal sum of $2, 620.22 or such higher amount as may be shown according to proof at time of trial, together with interest at the contract rate from June 26, 2006 to the date of entry of judgment.

11.Said agreement provides among other things that if plaintiff employs an attorney to enforce said agreement defendants promise to pay reasonable attorneys’ fees and cost incurred.

WHEREFORE, plaintiff prays judgment against defendants as follows:

1. For damages in the sum of $2, 620 or such higher amount as may be shown according to proof at time of trial:

2. For reasonable attorneys’ fees:

3. For interest thereon at the contract rate from June 26, 2006

4. For costs of suit herein incurred: and

5. For such other and further relief as the court may deem just and proper.

DATED: January 3, 2007

Signed: Bleier & Cox

Praying................

[takeahike]

...and I don't live in California, so this may not help you much here. BUT, I just appeared for my last time in Illinois court on my Motion to Dimiss with Prejudice (which means if granted -- AND IT WAS!!!! HURRAY!!! -- they can never pursue this alleged charge agreement, debt, any of it... EVER again ). Plaintiff filed suit in August 2006 alleging $9,000+ in principal and $6,000+ in interest. Nothing to verify this debt other than some flimsy typed statement from who knows who in New York, stating the two amounts. It was notarized. Big deal.

Suit was brought by a law firm for the original creditor, a major credit card company. This debt was about 4 years old. I recently read somewhere on this site that credit card companies typically only keep itemized records for 12-18 months.

In Illinois, there was no need to file a written response, so when I showed up I just said that I disputed the charges and asked for a Bill of Particulars itemizing the charges and interest. (I should note, for fun, that the plaintiff didn't even show up on its own original hearing on the complaint! Court granted my motion to dismiss for want of prosecution, but of course plaintiff filed a motion to reinstate, which was granted. All of this delayed the whole matter for a matter months.) The Court gave plaintiff 30 days to produce the requested documents. After 2 1/2 months, they still couldn't come up with anything proving this was my debt. Court gave them ANOTHER 2 1/2 weeks to come up with the Bill of Particulars (which completely baffled me). That deadline was today. NOTHING. HAHAHA! My motion to dismiss for failure to produce discovery (i.e., no validation of the debt) was granted, and the case has been dismissed............... forevermore!

And now I can contact the CRAs, either with a copy of the order or if I must, demand that they validate the debt, which they won't be able to do since the OC couldn't even do it. It will have to be removed from my credit report.

Hope something here helps you. Good luck!!! I should note for you that I was a pro se defendant b/c I also could not afford an attorney. Did lots of research and looking for answers everywhere. This site proved tremendously valuable, so thanks to all who post!!

[lbr55]

Got so far as the "Affirmative Defenses" posted by Admin which is what I was looking for so that's good. Now my question is, should I apply just a couple of them or, as I read somewhere, any and all that may or may not apply?

And, does anyone have any idea about how much it would cost to have an attorney file the answer to complaint?

thx