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Answering a summons in WV


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I received a summons in the mail on 3/21/09 from the Circuit Court on behalf of FIA Card Services. I need to file an answer within 20 days. Is there a general outline I can follow to answer the summons properly? If I loose, can they take my house? I lost my job, husband left and live on alimony. A couple of friends moved in to help, can they take their stuff if I get a judgement against me?

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Answers in a general sense involve:

1.) Statement of initial denials or admissions of the Summons and complaint paragraph by paragraph.

I don't get fancy on this one.

I just simply state "Defendant denies all allegations, cause of actions, or claims in the (case number reference) complaint".

2.) The next section should address affirmative defenses:

There is a whole sticky on this subject you can review. This is the place to assert statue of limitations, chain of custody, etc. Even if you don't think it applies, ASSERT IT. If you do not assert statue of limitations,you waive that defense. SO ASSERT IT! The worst that can happen is it gets ignored.

You could stop there, but if you are good, you can add:

3.) Counterclaims. (optional)

violations of FDCPA, or state consumer law, or any threatening and illegal behavior the other side commited against you.

4.) Any special pleading notices. (optional)

For instance in my state, we have a specific statue that the creditor must provide all document requests for consumer BEFORE JUDGMENT CAN BE GRANTED. This law only applies to my state. I make a volumonous list they can never possibly comply to without great difficulty. Check your state laws

LAST AND MOST IMPORTANT: (MANDATORY)

"TRIAL BY JURY DEMANDED"

Go to your local courthouse and find a successful case where the consumer won and copy that documentation and pleading if it fits the circumstances of your case. You don't have to re-invent the wheel.

Ideally, you should attach an affidavit testifying you are not in receipt of any and all documentation (and detail it), you lack knowledge opposing party is holder and owner of the alleged claim, and if you can do it honestly, that you have no idea what this claim is all about and consider the claim fraudulent.

Search "graduated denial" on this site and include that in your affidavit.

This forces scum bag lawyer to produce a witness. (Lawyer cannot be witness) Your affidavit reigns supreme in the case until that point.

This is throwing the pile of garbage back into the debt attorneys court.

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This varies by state. They cannot, nearly all the time, lien, levy, garnish, etc before the judgment. (unless its a student loan or IRS issue)

90% they go for ganishment, if you have no job, you do not have to worry.

They can lien your house, which most of the time does not become an issue until you sell. If you do not own your house, don't worry about it.

They could freeze your bank accounts over a certian level, but public benefits like Social Security, food stamps, welfare, are exempt from taking.

Fight it before you get judgment.

Doing what I suggest above will get you 6 months, minimum. If you feel that you are going to lose on a summary judgment motion or its close to trial, you could exercise the underlying arbitration clause to screw with them. That essentially resets the case in Arbitration, preferably JAMS. You will re- file your answer with arbitration provider, demand an in person hearing, maybe get a lawyer to file a counter class action complaint in arbitration, etc. (WV seems to be hot on this arbitration/debt collection topic right now.)

If it gets to judgment, you can still always file BK at any time to blow the collection out of the water.

Is there any reason why you would not just file bankruptcy?

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answer that lawsuit! It will buy you time.

You are worried about losing your house, that is only an issue with Ch.7 (blow up non-exempt assets and discharge). Even in this case, a chunk or all your house may be EXEMPT FROM TAKING.

Ch.13 you get to keep everything, including your house, but will be required to make payments to the court for 3-5 years.

An attorney will be able to design a plan to let you keep your house.

Just make sure you state that as an unwaivering goal.

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Thanks for the advice, I appreciate it. How do I answer the law suit? I called the circuit court that it was filed in, and they said they didn't have any answer packets, just to write my answer on a piece of paper and mail it to them. Can it be that easy? How will that impact having a judgment against me? Thanks!

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