Brak43 Posted January 25, 2008 Report Share Posted January 25, 2008 The Facts:1. Who is suing you? Capital One Bank2. For how much? $5,3653. Who is the original creditor? Capital One Bank4. How do you know you are being sued? I don't know. 5. How were you served? Were you served? A "Summons (Copy)" was taped to my front door today.6. What was your correspondence (if any) with the people suing you before you think you were being sued? Numerous calls/letters with Capital One, Phillips & Cohen Associates and, now, Rubin & Rothman, LLC7. Where do you live? Rocheter, NY8. When is the last time you paid on this account? August 6, 2007 to Phillips & Cohen9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or looking it up online (many states have this information posted daily). I don't beleive anything has. The top of the summons reads "Supreme Court of the State of New York/County of Monroe" but the bottom notes "This Comminication is from a Debt Collector."10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No. I don't dispute it. I just do not have the ability to pay at this time.11. Did you request debt validation before the suit was filed? If not, don't bother doing this now.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? There was no questioneer with it. The first pages states "You are hereby summoned to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons to serve a notice of appearance on the Plaintiff's Attorney(s) within twenty days after the service of this summons......in case of your failure to appear or answer, judgement will be taken agains you by default for the relief demanded herein."The second page lays out the facts (which I don't dispute) followed by a statement that the deponent is an attorney and believes they haven't violated any consumer laws (which makes me very suspicious of this being any type of real summons).13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? No. First page reads "SUMMONS (COPY)", second page reads "COMPLAINT (COPY)"14. What is the SOL on the debt? Six years, so it's a LONG way off.Here's the thing. It does not look legal in that both pages have the "We are attempting to collect a debt..." clause. Second, the dates on the page are all from November and December, yet I received it today. Date "filed" is December 12. It is Dated November 28. There is an "index number" but it is written in in pen. The bottom of each page also shows "Our File No." In essence, there is nothing here that leads me to beleive it was issued by a court.My inclination is that this is a scare tactic by Rubin & Rothman to make me think it is a real summons and filing. Any opinions? Link to comment Share on other sites More sharing options...
Rick9972 Posted January 25, 2008 Report Share Posted January 25, 2008 Call the courthouse now or try and find the hearing schedule online. Link to comment Share on other sites More sharing options...
Brak43 Posted January 25, 2008 Author Report Share Posted January 25, 2008 I just checked on-line and there is a listing under the "Party Inquiry" with a session number, receipt number, reference number and control number. There is no mention of dates or status. There is a notation that reads 12/12/07, civil, summons, complaint. There is no other information listed.It still appears to me that this was issued by the law firm and not the courts as the law firm's license numbers and policies are all over it and there is no mention of dates, information needed, etc. Am I thinking wrong? Link to comment Share on other sites More sharing options...
jwhite601 Posted January 25, 2008 Report Share Posted January 25, 2008 Sounds real to me, i'd go to the county clerk and show him/her the papers you recieved. Then file whatever the next step is with them. Link to comment Share on other sites More sharing options...
foreclosureparalegal Posted January 25, 2008 Report Share Posted January 25, 2008 It is obviously NOT set for hearing. Who are the attorneys? They are probably looking for a DEFAULT -- you do not file an answer with the court. Then they can proceed with levies on wages, bank accounts, etc. Link to comment Share on other sites More sharing options...
Zebron Posted January 25, 2008 Report Share Posted January 25, 2008 I am new to the business of suing in a small claims court even though I am not new to fighting back against collectors. I have reached a point where I need to take Midland Credit Management to court for failing to validate the debt, and then turn around and post the item in question on my credit report. Please help. I live in Texas by the way. Thanks in advance Link to comment Share on other sites More sharing options...
Brak43 Posted January 25, 2008 Author Report Share Posted January 25, 2008 It is obviously NOT set for hearing. Who are the attorneys? They are probably looking for a DEFAULT -- you do not file an answer with the court. Then they can proceed with levies on wages, bank accounts, etc.I will contact the court. What would be the answer, though? There is no questioneer and nothing that is really asked for (other than the money). Would my answer be a description of our situation to the court clerk? There isn't even an address, other than the attorney's, to which to forward any answer. Link to comment Share on other sites More sharing options...
cjtx Posted January 25, 2008 Report Share Posted January 25, 2008 If I'm not mistaken, NY is one of those states where a summons can be left outside your house and you are considered served.Prepare your answer. It's just a matter of time before they try to get a default judgment.You stated everything seems right as far as their claims. So maybe you should try to settle. Link to comment Share on other sites More sharing options...
cjtx Posted January 25, 2008 Report Share Posted January 25, 2008 I am new to the business of suing in a small claims court even though I am not new to fighting back against collectors. I have reached a point where I need to take Midland Credit Management to court for failing to validate the debt, and then turn around and post the item in question on my credit report. Please help. I live in Texas by the way. Thanks in advanceZebron: You need to start your own thread. Link to comment Share on other sites More sharing options...
Brak43 Posted January 25, 2008 Author Report Share Posted January 25, 2008 Prepare your answer. It's just a matter of time before they try to get a default judgment.You stated everything seems right as far as their claims. So maybe you should try to settle.Thanks cjtx. What, though, is my answer supposed to contain? Do I just state my current situation?I would love to be able to settle but, if I had the money to do that, I'd have been paying my monthly bill. Without going into great detail here, I'm only making enough to pay my utilities at the moment (about $10 to 12k per year) and I have no assets. They can get a judgement, but (at least now) the most they would be able to garnish under NY law is about $8 per week. Link to comment Share on other sites More sharing options...
CleverCynic Posted January 25, 2008 Report Share Posted January 25, 2008 Ack! Don't say you don't dispute it before you even get to a hearing! Link to comment Share on other sites More sharing options...
Brak43 Posted January 25, 2008 Author Report Share Posted January 25, 2008 Ack! Don't say you don't dispute it before you even get to a hearing!If the amount on the "summons" is correct (i.e., what I owe plus interest), what would I dispute? Link to comment Share on other sites More sharing options...
CleverCynic Posted January 25, 2008 Report Share Posted January 25, 2008 They still have to prove the debt... if you just admit to it they will win a judgement hands down. If you had an attorney they wouldn't have wanted you to affirm the debt so easily. A lot of times just showing up is a big point in your favor... you can claim hearsay, demand discovery, all kinds of things. Link to comment Share on other sites More sharing options...
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