Need help with a summons in AZ from Capital One

[themelodywithin]

Hi all. I'm hoping someone will be able to help me as I'm not exactly sure how to handle this.

I received a summons from Jerold Kaplan Law Office for Capital One. Well, technically my mother received it at an address that I no longer reside at. The summons says that "If served in Arizona, you shall appear and defend within 20 days after the service of the Summons and Complaint, exclusive of the day of service." It also says, "In order to appear and defend you must file and Answer or proper response in writing with the Clerk of this Court accompanied by the necessary filing fee within the time required, and you are required to serve a copy of that Answer or response upon plaintiff's attorneys."

I've been reading the forums and I'm not sure exactly how to go about doing that. Any advice would be absolutely wonderful!

Also, if I would like to settle outside of court, how wise would it be to call the attorneys? From what I've read, that's practically admitting to the debt and most won't take it anyway. I'd really like to get this taken care of.

Thank you all for your help!

[legal_loansharking]

Make sure its still within the SOL....

If it is, see what was attached to the summons ex..last credit card statement.

If they have you, then call the atty and settle.

If you want to fight, call cap1, punch in your acct # and you will probably be transferred automatically to Trak America. Read the boards about Trak America, talk to an attorney and tell him about your issue and Trak America and see what he/she says for AZ.

[themelodywithin]

It is still within the SOL.

However, all that was attached to the summons was an affidavit, the customer agreement (minus my name or my signature), and an arbitration agreement (also without a name or a signature). I'd rather not fight if I don't have to because I'd like to just get it over with, but I'm nervous to try and settle after reading about some other cases where people offered a settlement, actually paid, and then received a judgment anyway. Is that common or is that one of the rarer cases?

[admin]

Here's more information about Trak America:

http://www.debtconsolidationcare.com/creditors-information/corespondence-clearly.html

[legal_loansharking]

The agreement they sent you states this agreement is governed by VA state laws and federal laws, well the SOL in VA is 3 years, that might help you....

[themelodywithin]

I need to answer soon. Do I have to do it in person? I'm still not sure that I want to fight this thing. I'd rather just have it settled. Thank you all for your help!

[admin]

They have all kinds of answer examples in this site. Start scratching one out and we can critique it. Don't forget to leave out all identifying info.

[astiman]

More on Trak America

http://www.budhibbs.com/collectorpages/trak_america.htm

Do not miss your 'answer' date, or they will get a default.

It is imperative that you find out if Crap One still "owns" this account. If they do (which is usually the case) they WILL validate.

Answer the complaint.

[merrybucks]

I need to answer soon. Do I have to do it in person?

You need to file your answer with the clerk of the court. It is easier to file your answer in person, but you can mail it in along with the filing fee. You will need to have your answer notarized if mailing.

[themelodywithin]

You all have been so wonderfully helpful! Thank you, thank you! I believe I may have my answer formatted, so I'm going to post the rough draft, along with a rough outline of the summons. Please let me know if this is okay.

Complaint:

Capital One Bank,

V.

Me and John Doe, my spouse (I'm not married)

I. Defendant(s) is/are residents of XXX Precinct, XXX County, State of Arizona

II.

1. Entered into contract with plaintiff or plaintiff's assignor, copy of which is attached (it's not, it's just a copy of their cardmember agreement: balance remaining 1xxx.xx and accruing interest in sum of xxx.xx.

2. defendants have failed to pay and is owed to plaintiff

3.Contract provides for reasonable attorney fees xxx.xx upon default

Wherefore, plaintiff demands judgement for 1xxx.xx and accrued interest with reasonable attorney fees if upon default.

Signed (stamped is more like it)

XXXX XXXX

Attorney for plaintiff

Affidavit: -Do I need to include these accusations in my answer? What does the affidavit do?

Answer:

I. Admit (although I'm not sure I should because it talks about me and my spouse and I'm not married, any insight?)

1. The defendant lacks information sufficient to admit or deny the allegations, therefore they are denied.

2.The defendant lacks information sufficient to admit or deny the allegations, therefore they are denied.

3.The defendant lacks information sufficient to admit or deny the allegations, therefore they are denied.

Defenses

First defense - (Law Firm) has not proven that it has been retained by Capital One as its representative in this matter.

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

Third defense -Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

Anything else you guys can add would be welcomed and appreciated!

[admin]

As an afirmative defense, I'd also cite lack of privily (lack of contractual agreement, - many amend your first affirmative defense).

Also add, "failed to state cause of action" "unjust enrichment"

[themelodywithin]

There is a generic answer form that the Maricopa County Justice Courts use. Would you all recommend using that form or just use it as a formatting tool for an answer that I come up with on my own? I found the link at AZLawHelp . org.

[admin]

Come up with your own.