Summons - Need some clarity

[Keldar2222]

I have done my best to read up, but there is so much information it is almost overwhelming - I do apologize if my searching abilities are not up to par.

Last night I was served with paperwork from a local law office that is representing Unifund CCR Partners (who is collecting for First USA Bank). My court date is set for 12-18-08 at 10am.

The first thing I did, even before I came here to read up on this, was to pull my credit report. I pulled reports from all three agencies and there is absolutely no mention of Unifund or First USA bank under the "adverse accounts" sections. In fact the ONLY references in my credit report that Unifund did an account review inquiry on 6/2008 + 11/2007 and the Law Firm that is representing Unifund did one on 05/2008.

I see absolutely NO mention anywhere on any of the reports showing that I owe Unifund/First USA a dime. If I remember correctly the debt is at least 8 years old and since my credit report is empty of references, the SOL has to have expired right?

Can I ask for a dismissal based on that alone?

As I see it my steps are as follows:

* Send the Lawyer here in town a debt validation letter via certified mail.

Do I have to file anything with the court showing I sent that letter? If so do I have to wait for the firm to actually receive the letter?

(Edit: I see that a DV may be fruitless and that I need to 1. Reply to the complaint and 2. Send a request for discovery. How do I do step 1? Do I send something to the attorney or the court?)

* Show up to court on 12-18 and be ready to argue the following:

• Equifax, Transunion, and Experian all show absolutely nothing regarding this debt. This shows that Unifund has no claim over me since they did not bother to report the debt as current.
  
• The debt was incurred in Iowa and Unifund is from Ohio - Illinois court has no jurisdiction
  
• There is no proof of valid debt (the debt validation letter should show the judge what needs to be proved)
  
• If Unifund does not send a representative I can ask for dismissal based on my right to face my accuser.
  

How much am I missing / How much have I gotten wrong?

[remus936]

If your summons is legit than stated on there will be a time frame that you must provide the court with an answer to the complaint(usually 20 days, but that depends)This is very important if you do not do this, game over, you lose. also answer any request for admissions if so included, if not, game over, you lose.

You need to find out what the SOL in in your state, but I would think that 8 yrs would be time barred in most states, If you claim that it is time barred than this must be in your answer as an affermitive defense or you may lose your right to use it at trial. From what I have heard it does no good to do a debt valadiation after you have been served.

After you file your answer you can then request discovery & admissions, this is where you can find out if they can produce any authenticated documents showing this account is yours & THAT THEY HAVE THE RIGHT TO RECOVERY!!

Hope this helps clear things up a little, Guys I am just sharing my new found knowledge...Now let the experts chime in

[Keldar2222]

If your summons is legit than stated on there will be a time frame that you must provide the court with an answer to the complaint(usually 20 days, but that depends)This is very important if you do not do this, game over, you lose. also answer any request for admissions if so included, if not, game over, you lose.

You need to find out what the SOL in in your state, but I would think that 8 yrs would be time barred in most states, If you claim that it is time barred than this must be in your answer as an affermitive defense or you may lose your right to use it at trial. From what I have heard it does no good to do a debt valadiation after you have been served.

After you file your answer you can then request discovery & admissions, this is where you can find out if they can produce any authenticated documents showing this account is yours & THAT THEY HAVE THE RIGHT TO RECOVERY!!

Hope this helps clear things up a little, Guys I am just sharing my new found knowledge...Now let the experts chime in

Thank you for the reply. I have found a template'd letter for discovery but I have not seen one on how to answer a summons. Does anyone have any suggestions on how to reply to the summons?

[remus936]

* Show up to court on 12-18 and be ready to argue the following:On this date you should not have to do anything other than make an appearance and deny the claim against you, this is way to soon for a final hearing, if you just got served!!

Equifax, Transunion, and Experian all show absolutely nothing regarding this debt. This shows that Unifund has no claim over me since they did not bother to report the debt as current. Unifund may or may not have a claim against you, but just because it doen't show up on your credit report, don't mean it doesn't exist.

The debt was incurred in Iowa and Unifund is from Ohio - Illinois court has no jurisdiction this does not matter, as long as the lawyer can practice law in your state they can sue you

There is no proof of valid debt (the debt validation letter should show the judge what needs to be proved) Sorry, but this is false, all the DV will show is who the orginial creditor is and who the debtor is. It has no relevance in trial.

If Unifund does not send a representative I can ask for dismissal based on my right to face my accuser. This is your best case scenerio

[remus936]

Your answer depends on what your state RCP, & watch out for the internet templates they can hurt if not lose your case sometimes. Do a google search for the Rules of Civil procedure for your state & get to know them very well they will become your new best friend for this process. Knowledge is power, when it comes to this, you can bet that the plaintiff's lawyer knows how to use the system for their favor, now you need to study so that you can use the system to your favor.

[nascar]

Illinois has a wealth of favorable consumer caselaw to draw upon. If this is a typical Unifund complaint, you're probably in pretty good shape, especially if the debt is as old as you say.

Absolutely, definitely, and whatever other word means the same thing, take advantage of the SOL. Isn't the First USA card the one where you can only buy catalog stuff?

[debtorshusband]

You've gotten some good advice so far, including: How you need to respond varies from state-to-state, so it's hard for many of us to tell you what exact steps you need to take. The best place to find help for this is from your court clerk, from your court's website, or from a local attorney. That having been said, I'll respond in red font to some of your particular questions.

DH

I see absolutely NO mention anywhere on any of the reports showing that I owe Unifund/First USA a dime. If I remember correctly the debt is at least 8 years old and since my credit report is empty of references, the SOL has to have expired right?

Can I ask for a dismissal based on that alone?

You can assert the SOL has expired, and you should, but the credit reports are not enough evidence. A creditor doesn't need to report at all, he must report accurately if he does report.

(Edit: I see that a DV may be fruitless and that I need to 1. Reply to the complaint and 2. Send a request for discovery. How do I do step 1? Do I send something to the attorney or the court?)

Now you've got it right. See my first statement regarding how to find out how to respond properly; it varies.

* Show up to court on 12-18 and be ready to argue the following:

• Equifax, Transunion, and Experian all show absolutely nothing regarding this debt. This shows that Unifund has no claim over me since they did not bother to report the debt as current.
  No good. As I said, there's no requirement for a creditor to report to a CRA.
  
• The debt was incurred in Iowa and Unifund is from Ohio - Illinois court has no jurisdiction
  No good. FDCPA requires you to be sued where you live, that's why they found a lawyer licensed in your state to file the suit.
  
• There is no proof of valid debt (the debt validation letter should show the judge what needs to be proved)
  If this goes to the Discovery phase, that's when you demand your proof.
  
• If Unifund does not send a representative I can ask for dismissal based on my right to face my accuser.
  You can try. I suspect the judge is more likely to order a continuance the first time around and give the other side another chance.
  

How much am I missing / How much have I gotten wrong?

[Keldar2222]

Illinois has a wealth of favorable consumer caselaw to draw upon. If this is a typical Unifund complaint, you're probably in pretty good shape, especially if the debt is as old as you say.

Absolutely, definitely, and whatever other word means the same thing, take advantage of the SOL. Isn't the First USA card the one where you can only buy catalog stuff?

Ok.

So it sounds like my next two steps are:

1. Reply to the summons. I called the courthouse and the clerk who answered said that they would help me fill out that paperwork.

2. File a motion for discovery.

Other than waiting for the discovery is there a way for me to find out if I am indeed past the SOL? The credit unions aren't going to be able to help b/c it has dropped off of their reports. If my memory serves me correctly the account is 8 or so years old, but obviously I'd like some concrete evidence.

[merrybucks]

Claim SOL in your defense. Ask for the documents in discovery.

[Fairy Enchantress]

Keldar2222,

I was in your place not too long ago. I had great help here at CIC and prevailed. Nascar, Debtorshusband, and Merrybucks helped me tremendously.

I thought these three links could help you with the summons for an example and insight. Best of luck to you!

What happens if you put an affirmative defense in your summons and...

http://debt-consolidation-credit-repair-service.com/forums/showthread.php?t=286689

Does this look okay?Or did I fill it out wrong?

http://debt-consolidation-credit-repair-service.com/forums/showthread.php?t=286618

Should I select I want a jury trial when I answer this summons?

http://debt-consolidation-credit-repair-service.com/forums/showthread.php?t=286594