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Being sued... need help


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1. Who is suing you?

Access Group, Inc

Represented by:

Stacey S. Fisher, Esq

Sprechmann & Associates

2. For how much?

$42,000

3. Who is the original creditor?

Access Group

4. How do you know you are being sued?

Summons given to my mother at her house in Florida. I live in Missouri

5. How were you served? Were you served?

Was not served personally

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?

Missouri

8. When is the last time you paid on this account?

June 2005

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).

Waiting for reply to suit. I have 20 days

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

With credit bureau

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? (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?

Yes. 20 days

Suing for principal, plus court costs, plus attorney fees

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

Promissory note when loan given.

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

% years

I need to know my next move. Should I try to settle with company? etc...

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Original post by: gyrici

4. How do you know you are being sued?

Summons given to my mother at her house in Florida. I live in Missouri

5. How were you served? Were you served?

Was not served personally

7. Where do you live?

Missouri

This is an issue to begin with. Check your state's laws to see what qualifies as service. In my state this would not be a proper service.

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

Promissory note when loan given.

I am going to assume that your signature is on this promissory note? I would then start reading the note to find out what I exactly signed my name to. You may be able to find some violations that the creditor has made.

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

% years

I wish I could live to be 96.

Check out this sticky:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=252142

Be aware that this is a "laundry list" to pick from. Choose what makes sense for your situation...leave the rest out.

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JUST A MINUTE!.... Is the document you are calling a promissory note/agreement, a certified copy of the ORIGINAL document???? OR is it a copy of some document that has the appearance of the real thing??? Do not fall for the false evidence trap! Believe me, I know from experience!!! You have a right to inspect the ACTUAL DOCUMENT that gives rise to the alleged claim owed! PERIOD! However, if for some reason "they" cannot produce the ORIGINAL UNALTERED DOCUMENT "they" (DC/CA) have a VERY SERIOUS PROBLEM. Without the original you can claim the document they sent to you is a forgery, amounting to " heresay evidence" due to the fact, the document you received is NOT the "original unaltered agreement/promissory" note..etc.. and you have no way of knowing the signature is "yours" without you first examining the "original" for inconsistances. Therefore, "they" have no proof that an obligation exists! Furthermore, never...never...never accept anything but the "original" note, or at the very least a "certified copy" (look up the word "certifed" in Black's Law Dict. 6th Ed.) of the original note. And even then, I would still demand to see the original! The service of process is something that must be looked into as well,as mentioned by another response to your post. Some states allow the service to be sent via certified mail and/or left on your doorstep, but most states require that a sheriff or Constable hand deliver it to you. Lastly, whenever you are being sued conduct yourself (your case) in a manner that will preserve your issue for appeal if you need to go that far. I do not say this to scare you, but, you must make every effort to force your opposition to prove their case, and DO NOT testify against yourself by admitting or giving the other side ammunition to use against you. If you need help in this area I can give you some! I've been there more than once. Study your state's rules of court for properly and timely answering the complaint.

Regards,

Frank

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Original post by: jestor1776

I know from experience!!! You have a right to inspect the ACTUAL DOCUMENT that gives rise to the alleged claim owed! PERIOD! However, if for some reason "they" cannot produce the ORIGINAL UNALTERED DOCUMENT "they" (DC/CA) have a VERY SERIOUS PROBLEM.

If the oc signed an affidavit that the "copy" was in fact "real" then wouldn't this be prima facie?

Seeking out a good attorney is always good advice if you know a good one and you can afford his fees. Otherwise it has been my personal experience that a cheap lawyer you don't know is a waste of time. There is good advice on this forum that you need to follow up with legal references. Don't go to court quoting what sounds good unless you can legally support your defense from your state Rules, etc.

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Original post by: jestor1776

If the oc signed an affidavit that the "copy" was in fact "real" then wouldn't this be prima facie?

Seeking out a good attorney is always good advice if you know a good one and you can afford his fees. Otherwise it has been my personal experience that a cheap lawyer you don't know is a waste of time. There is good advice on this forum that you need to follow up with legal references. Don't go to court quoting what sounds good unless you can legally support your defense from your state Rules, etc.

An affidavit could be considered prima facia, IF it conforms to the requirements needed to "qualify" as an affidavit. IOW, if the person who signed the affidavit is the "custodian" and/or "holder in due course", of the original note then perhaps. Although, from my experience of helping other people regarding OC/DC/CA etc.., the document offered allegedly claiming to verify the truth of the "authenticity" of the original note is usually defective in one way or another. The reason being is the actual/original note in question is no longer available, not in existence or some other excuse. However, even IF the OC were to provide the original document they claimed you signed, could still be challenged. Why you ask?? Well, because even if you did sign the note, the person who is swearing out the affidavit would still have to prove that they were present at the time of the signing of the note, otherwise, they are reduced to an incompetent fact witness. (see court rules in your state governing competent witnesses). You will discover, that 99.9% (speaking from experience) there is NO COMPETENT FACT WITNESS! Only the illusion of competency! In order for a plaintiff to obtain a judgment against you they have to prove, 1) there was a contract, 2) You agreed to the terms of the contract (i.e. your signature) 3) There was full disclosure of ALL MATERIAL FACTS surrounding the contract, 4) There was consideration given (i.e- they agreed to loan you "their" money) in exchange for you're pledge/promise (collateral), to pay back in payments, over years, with interest. This is simple contract law, right? Well, I'd be willing to bet, without even seeing your contract/promissory not/agreement etc.. that they (OC), NEVER LOANED YOU ONE RED CENT OF THEIR MONEY! which of course is the normal practice for all Federal Reserve banks and loan companies in the US. Anyway, if you want to learn more about how banks do this little "slight of hand" trick when it comes to "loaning" money, I suggest you ask me in a separate post, as this is a phenomenon in itself.

Therefore, getting back to what I was saying. It makes NO difference if the document sent to you, (which "appears" to be a copy of the "alleged" original note), if the person swearing out the affidavit is not a "competent fact witness", wherein they must prove that they were physically present when you allegedly signed the note. If they cannot prove this (which is what interrogatories and production of document requests are for) in discovery, you can motion the court to have all their testimony stricken from the record, using the argument, of lack of a competent fact witness, hearsay testimony, and thereby filing a motion to dismiss for lack of failure to state a claim for which relief can be granted. Your next question??

In regards to the attorney statement made. I have no objection to hiring an attorney IF I can deduce that he/she is "competent" in understanding the issues before him/her. However, it is VERY unlikely you will be able to find such a person. If you are so fortunate to find one then you most probally won't be able to afford him, unless of coarse he is your relative or some oddity as that. That is why I encourage people to become knowledgeable, skillful, and effective in the realm of law. It WILL take time, effort, some resources, patience, courage, willfulness and ALOT OF STUDYING!!! I do not trust most attorneys, however, I have made a few Friends in the legal industry simply by showing them I was more schooled in the matters of interest than they were. You'd be surprised of the amount of respect you get from those in the legal "profession" once you show them you are properly educated in areas they should be.

Bless you!

Frank

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Original post by: jestor1776

It makes NO difference if the document sent to you, (which "appears" to be a copy of the "alleged" original note), if the person swearing out the affidavit is not a "competent fact witness", wherein they must prove that they were physically present when you allegedly signed the note.

I spent a few minutes doing word searches for "competent fact witnesses" in the Rules but, as of yet, have not found anything that I could take to court to support the interesting defense you have laid out...doesn't mean it isn't there...just that I can't find it.

I believe I may be finding myself in the same shoes as the OP and would like to start preparing my defenses to any ensuing lawsuit.

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Try using a search of Black's Law Dictionary for "competent witness" and search your court rules relating to the same. A basic fundamental of law, is you have a right to challenge the "truefulness" and "correctness" of the allegations made against you. Also, look up the words " holder in due course", " fraud in the factum", "fraud in the inducement", and "legal detriment" in the law dictionary. It would be very helpful to you id you invested $40 or so dollars in purchasing a Black's Law Dictionary if you can afford. The actual words

"competent fact witness" may not give you many results in a search, however, this is how you would style it when structuring your complaint or answering one. If you are still having problems with what I mentioned let me know.

FM

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