I have been summoned...Help!!!

[profyt7]

Hi,

I went to the mail box yesterday and got a letter from my municipal court. I quickly opened it only to find a summons from Erin Capital Management for a extremely old account from back when i was in college. This account is from 1999 and I am sure is past the SOL. Is it correct that the SOL for Ohio on revolving credit accounts is 6 years? If so this is outside the SOL. Further more this account was originally with citibank. They must have bough it recently. The summons is asking me to file an answer and I am not sure exactly how to proceed or even file an answer. Is there a template for answering? Also, I am not sure if i was properly served since i never had to sign anything nor was it served by anyone. I am not sure if it is outside the SOL. Here is some info below to get an idea to better help me. Thanks

1. Who is suing you?

Erin Capital Management llc C/O Levy & Assoc.

2. For how much?

$2036.17 plus 8% interest from july 9 2004

3. Who is the original creditor?

Citibank

4. How do you know you are being sued?

Have some official papers from my city court with a filed stamp on it.

5. How were you served? Were you served?

Got a letter from my city court in the mail.

6. What was your correspondence (if any) with the people suing you before you think you were being sued?

Never heard of them before

7. Where do you live?

Ohio

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

Probably in 1999 or 2000

9. 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).

Just Received the summons yesterday

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

I think a long time ago with citibank because it is nowhere on my credit report. I may have sent a DV letter back in 2002 or 2003.

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

I think a long time ago with citibank because it is nowhere on my credit report. I may have sent a DV letter back in 2002 or 2003.

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?

I did not get a questionnaire but it says that i must file an answer to the complaint within 28 days after the summons is served. But the wierd thing is there is no date on the letter and the summons wasn't officially served. I just got it in the mail with regular postage.

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

They sent an affidativ that says affiant is 18 years and competent to testify, authorized to make oathon behalf of erin capital mgnmt., affiant maintains books for Erin capital mgmt., affiant reviewed books and as of 08/21/2008 ther is an outstanding balance for 2036.17, the account origniated with citiibank and was sold on 9/27/2005.... This affidative says state of New york and is stamped by a notary in New york who is the affiant. Also the notary's license is expired. It expired on jan. 10 , 2009. Then they have a statement from Erin Capital Mgmt. al it says is amount due is $2036.17 with a past due and staement date of 9/27/2005. Thats it. no other info.

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

From what i can gather in ohio for revolving credit it is 6 years

[admin]

Prepare an answer like one of the many examples in this forum. It sounds like you have an absolute defense in the SOL.

[montanatim]

They still have to prove that they do indeed own the account.

The affidavit should be garbage in the light of Ohio statute 2317.40. If you were living out of state when the cause of action accrued, you may have a defense in that states SOL as Ohio recognizes foreign SOL's.

http://codes.ohio.gov/orc <-- If you intend to do this pro-se you'll need this.

[buckeyechick1219]

I was sued by Unifund for a Citibank account in Ohio. From what I've read, Ohio usually follows the 15 year SOL for written agreements in reference to credit cards. However....

They have provided nothing in regards to this account. They haven't even provided a generic card holder agreement.

They have not provided a properly executed assignment of debt.

Citibank card agreements are usually governed by South Dakota law, and South Dakota recognizes a six year SOL.

When I was originally answering my summons, somebody recommended that I request in my answer that the case be dismissed with prejudice based on the lack of a proper assignment of debt. Of course, you must still answer that you deny the allegations in the summons. I did not get the response until after my answer had been filed, so I don't know how that would have played out. I do, however, know that my case was dismissed before the court date.

I got a lot of great information for my case from this site. You may want to search for threads by me, because a lot of really knowledgable people gave me a lot of great advice in them.

[profyt7]

Is there anything I should change? I was confused on some of the defenses..mainly 2 and 3 as to wether or not i should mention citibank since they were the OC or not.

ANSWER OF THE DEFENDANT

Defendant, appearing pro se, for its reply to the Complaint naming Erin Capital Management, LLC C/O Levy & Associates plaintiff as follows: All answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein.

ANSWERS

1. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

2. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

3. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

4. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

5. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

6. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

7. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

DEFENSES

1. Erin Capital Management, LLC C/O Levy & Associates has not proven that they are authorized and licensed to collect claims for others in the State of Ohio, or solicit the right to collect or receive payment of a claim of another.

2. Levy & Associates has not proven that they were retained by Erin Capital Management, LLC as it’s representative in this matter.

3. Levy & Associates has not proven that Erin Capital Management, LLC is the real party in interest. Defense demands proof of ownership, specifically that the alleged account is still the legal property of Erin Capital Management, LLC, with all of the original creditor’s rights and privileges intact.

4. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

5. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

6. Levy & Associates has provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account.

7. Defendant alleges that Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them.

8. Plaintiff’s alleged damages are limited to real or actual damages only.

9. Defendant alleges that Plaintiff's actions are precluded, whereas Plaintiff's demands for interest are usurious and violate state and federal laws.

10. Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.

11. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account).

12. Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

13. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

14. Plaintiff's Complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

15. Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

16. Plantiff’s affidativ is irrelevant in light of Ohio Statue 2317.40.

17. Defendant alleges that this action is time-barred under Ohio Revised Code 2305.07.

Defendant prays this case be dismissed with prejudice on lack of a proper assignment of debt and it is time-barred under Ohio revised Code 2305.07 along with any further relief the court deems just and proper. Further the defendant sayeth not.

By the Defendant pro se

Dated: January 27, 2009

[profyt7]

^^^

[OMGWhatHaveIdone]

Although I can not advise on your issue, please give others a day or two to respond before bumping your post back up. Everyone who gives advice here volunteers their time so they may not see it until they get around to it. If you don't get an answer after a few days, then try bumping again.