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Hello,

When one is being sued, can the assets of one's spouse be garnished, taken, ect, if the one being sued has no assets?

If one does not answer letters from debt collectors and is then sued, have they (the one being sued) confirmed the debt to be valid by not stating otherwise?

Thanks,

mamom in MA

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Hello,

When one is being sued, can the assets of one's spouse be garnished, taken, ect, if the one being sued has no assets?

If one does not answer letters from debt collectors and is then sued, have they (the one being sued) confirmed the debt to be valid by not stating otherwise?

Thanks,

mamom in MA

Depends on if you are in a community property state or not. Are you being sued, if so, you might want to do a search for "being sued" or something. In some of the better threads you will find a list of questions you should answer to us so people can give you an idea on how to approach the suit. Being sued doesn't always mean you are going to lose, even if you owe the debt. They must prove the debt and the chain of assignment, etc.

Good luck!

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To answer your first question... it depends (state law and fact specific).

To answer your second question... absolutely not. Failing to dispute the debt cannot be construed by any court as an admission of liability.

To clarify my second answer, that is only valid for businesses classified as debt collectors under the FDCPA. Vs. an OC, you'd have to contend with account stated claims, which is a state common law way of saying "look you agreed to the balance by not exercising due diligence and disputing it".

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Thanks for the replies.

I am in MA which is not a community property state. So does this mean that assets in my spouses name can or cannot be taken, wages garnished, and the like?

IHateCAs wrote:

Failing to dispute the debt cannot be construed by any court as an admission of liability.

To clarify my second answer, that is only valid for businesses classified as debt collectors under the FDCPA. Vs. an OC, you'd have to contend with account stated claims, which is a state common law way of saying "look you agreed to the balance by not exercising due diligence and disputing it".

I'm not sure what "account stated claims" are? Is that just the alleged debt that the cc company claims I owe?

A few more details: I am being sued in District Court, by a collection agency through an attorney in located in my state. From a personal privacy standpoint, I dont' feel comfortable answering all of the questions in the sticky.

Thank you,

mamom

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An account stated basically works like this:

1) You engaged in a transaction(s) with the OC.

2) The OC rendered a bill for their services.

3) You did not dispute their billing statement in a reasonable amount of time.

4) Therefore, you agreed to the statement as correct and owing.

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An account stated basically works like this:

1) You engaged in a transaction(s) with the OC.

2) The OC rendered a bill for their services.

3) You did not dispute their billing statement in a reasonable amount of time.

4) Therefore, you agreed to the statement as correct and owing.[/QUOTE]

Numbers 3 & 4 sound like you're saying that failure to dispute the alleged debt can be construed by the court as an admission of liability? Am I missing someting?

Thank you,

mamom

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Numbers 3 & 4 sound like you're saying that failure to dispute the alleged debt can be construed by the court as an admission of liability? Am I missing someting?

Account stated refers to a claim made by an OC. Didn't you say you were being sued by a CA?

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a big difference!

Many OCs keep good records so they can usually show your debt is valid. They can produce copies of the original application, contract, statements, etc.

CAs on the other hand, buy bad debts in bulk and often times don't have all the paperwork to prove you owe any money or they are entitled to collect from you.

when did you make your last payment?

it would be so much easier if you answered at least some of the questions in the sticky.

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That is a question I am curious about too. If an OC charges off a debt, does that mean the OC writes it off and no longer collects? OR does the OC assign the debt to a collection lawyer to collect for them after the charge off? I am being sued by a lawyer that states he is collecting ON BEHALF of the OC. Could this be true?

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A charge off is just for accounting purposes. Until the OC sells the account to a CA, it may still try to collect from you and sometimes it will hire a local collection lawyer on a contingency basis to go after debtors.

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a big difference!

Many OCs keep good records so they can usually show your debt is valid. They can produce copies of the original application, contract, statements, etc.

CAs on the other hand, buy bad debts in bulk and often times don't have all the paperwork to prove you owe any money or they are entitled to collect from you.

when did you make your last payment?

it would be so much easier if you answered at least some of the questions in the sticky.

Here are some answers:

I am being sued by a CA

When is the last time you paid on this account?

Feb 2005

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

I thought I had, but hired the wrong people...learned my lesson. It looks as thought I simply stopped paying.

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

See answer to 10

12. Does your summons require a response?

Yes

We need to know what the "charges" are. Please post what they are claiming.

They are claiming: " The defendant owes the plaintiff the sum of $$ for the unpaid balance due for money loaned to the defendant by the plaintiff's assignor on a credit card account.

WHEREFORE the plaintiff demands judgement agaisnt the defendant in the sum of $$ plus interest thereon from date of demand and the costs of this action."

Did you receive an interrogatory (questionnaire) regarding the lawsuit?

No

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits?

They attached an affidavit and a statement of damages.

14. What is the SOL on the debt?

6 years

Thank you,

MAMom

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Was the affidavit from someone who works for the OC or someone who works for the CA claiming he/she has knowledge of the debt?

If it's the latter, it's hearsay and it doesn't prove anything.

Also, they need to prove chain of title; i.e., whether they bought it from someone else and that someone bought it from someone else and so on, all the way back to the OC.

Did you ever dispute the debt with the CRAs?

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Was the affidavit from someone who works for the OC or someone who works for the CA claiming he/she has knowledge of the debt?

If it's the latter, it's hearsay and it doesn't prove anything.

Also, they need to prove chain of title; i.e., whether they bought it from someone else and that someone bought it from someone else and so on, all the way back to the OC.

Did you ever dispute the debt with the CRAs?

It is from an attorney who works for the CA, claiming they have knowlege of the alleged debt.

I thought I was disputing with the OC's, but I didn't fully understand the process, and got hosed by the company that I used. They sent paperwork that said I would be sending the letters, but then they never forwarded the letters to me. They said they were sending them on my behalf.

When I told them the OC's had no knowledge of the validation attempts, they told me "we can't keep the CC companies from lying to you." Of course it was they who were doing the lying.

So how do I go about answering this summons?

Thank you

MAMom

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Assuming you are still disputing the amount they are claiming. Here are 2 options I know of, but it may be a little different according to the rules of civil procedure of your state:

- Take each paragraph and write an answer, admitting basic info, but denying any claims you are not 100% sure of and demanding strict proof of it.

- Write a general denial. Basically denying everything and demanding strict proof.

After that, you need to include your affirmative defenses. Check the sticky for those that apply to you.

Finally, state your prayer to the court, where you may ask that the case be dismissed with prejudice, etc.

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Assuming you are still disputing the amount they are claiming. Here are 2 options I know of, but it may be a little different according to the rules of civil procedure of your state:

- Take each paragraph and write an answer, admitting basic info, but denying any claims you are not 100% sure of and demanding strict proof of it.

- Write a general denial. Basically denying everything and demanding strict proof.

After that, you need to include your affirmative defenses. Check the sticky for those that apply to you.

Finally, state your prayer to the court, where you may ask that the case be dismissed with prejudice, etc.

Hi cjtx,

Thanks for your reply. I have some more questions.

It is a one paragraph complaint, stating: "The defendant owes the plaintiff the sum of $$$ for the unpaid balance due for money loaned to the defendant by the plaintiff's assignor on a cc account.

WHEREFORE the plaintiff demands judgement against the defendant in the sum of $$$ plus interest thereon and the costs of this action."

What is a 'general denial' and how should it be written?

How do I 'demand strict proof'?

I looked over the affirmative defenses sticky and found this to be the only one that might fit this case, but I'm not certain:

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.

Would the above qualify as demanding strict proof?

How do I 'state my prayer to the court', and what is 'dismissed with prejudice'?

Thank you,

MAMom

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Thanks BigJohn,

I read the beginning of the post above. I am left wondering why to add so many defenses? Is it just to make them work harder in their rebuttal (if that's the right word)?

Also, are all responses sent both to the CA and the court?

Thank you,

MAMom

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Thanks BigJohn,

I read the beginning of the post above. I am left wondering why to add so many defenses? Is it just to make them work harder in their rebuttal (if that's the right word)?

Also, are all responses sent both to the CA and the court?

Thank you,

MAMom

Absolutely. IMO, I would use every defense that could apply to me. They have to WORK to get my money and you'll find, most of them don't have the proof they need to win in court. Don't lay down and let them walk on you for sure!

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oh and FYI if you are in a non community property state (as I am) they can not touch your spouses accounts, garnish.. etc..

ONLY joint accounts at the bank or accounts in your name.

As far as a lien on the house goes in NC I am told they can not lien that either since its marital property if both names are on it.. in short only things with your name can be touched.. double check that but that is how it works here in NC

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HI all,

Ok I went to this thread and read it, and now my head is spinning.

It would be helpful if someone could explain, or point me to a thread that explains exactly what is needed to respond to a summons?

They (CA in summons) sent one brief paragraph that I allegedly owe X amount and they are demanding that amount plus expenses.

So I look at the reply Jary sent regarding her summons, and I can't figure out how she figured out what Affirmative Defenses suited her case? I looked them over in the sticky and found just one that looked right for mine!

Her case is more comlicated than mine, true, but is it naive to send just one AF?

Thanks,

MAMom

Hi.

You keep starting new threads asking the same questions over and over.

It is to your advantage to use as many affirmative defenses as you can, as long as there is some justification. As a pro se you are not expected to be held to the same standards as a lawyer would. Just be careful not to abuse it or iyour defenses may not be taken seriously.

Absolutely. IMO, I would use every defense that could apply to me. They have to WORK to get my money and you'll find, most of them don't have the proof they need to win in court. Don't lay down and let them walk on you for sure!

Check out the MA rules of civil procedure for the format of your pleadings.

http://www.massreports.com/courtrules/civil.htm#rule7

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