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roxy321

Received summons-- NEED ADVICE!!

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1. Who is suing you? Zarzaur & Schwartz

2. For how much? $1,167.77

3. Who is the original creditor? Capitol One

4. How do you know you are being sued? Served with a summons

5. How were you served? Were you served? In person by sherriff.

6. What was your correspondence (if any) with the people suing you before you think you were being sued? No

7. Where do you live? Alabama

8. When is the last time you paid on this account? May 2008

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or B) looking it up online (many states have this information posted daily). It was filed June 19, 2009

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. No

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?

No questionnaire received.

The attorney's Declaration Pursuant states that first cause of action was breach of contract, the second cause of action is money had and received and thrid cause of action account stated

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? Nothing

14. What is the SOL on the debt? Alabama.... 6

I have no idea as to where to begin handling this matter. I can't afford an attorney nor do I have the lump sum. I can make monthly payments on this. I just dont know who I need to speak with in order to try to resolve the matter without going to court. Please help!! I have until Friday July 3 to respond.

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The first thing you need to do is file an answer.

People here can guide you through that. It is VERY IMPORTANT that you file it within the time limits or you can lose by default. DO NOT ALLOW THIS TO HAPPEN.

Is this in relation to a credit card account?

Who is named as the plaintiff on the summons?

Have you pulled your credit reports?

If so what is showing on them regarding this account?

Have any collection agencies or JDB's been in touch with you, if so who?

Is this your debt and do you recognise the amount claimed as being correct?

You can find your states Rules of Civil Procedure and other AL legal resources at the link below

http://www.lawsource.com/also/usa.cgi?al

You will find pro bono and legal assistance links for low income cases at the link below

http://www.abanet.org/legalservices/probono/directory/alabama.html

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What court did they sue you in? Small claims or other? That will affect your answer procedure.

You may also want to contact John Watts and ask about a free or low cost consult, or simply read their blog to help you understand some of the legaleze and how debt lawsuits work here

www.alabamaconsumerlawblog.com

Here is some case law on Alabama account stated , can't help with the written contract though.

(Quotes found in Ayers v. Cavalry)

An account stated also requires an express or implied agreement to pay the bill. Car Center, supra. Calvary does not allege an express agreement between the parties. In Car Center, our supreme court held that "[a]n implied agreement to pay a bill can arise only where there has been a showing that the bill was rendered and the recipient of the bill failed to object within a reasonable time." 519 So. 2d at 1323. Here, Cavalry has failed to demonstrate that a bill was rendered to Ayers, and, therefore, that Ayers's agreement to pay the bill could be implied.

In Mobile Rug & Shade Co. v. Daniel, 424 So. 2d 1332, 1333 (Ala. Civ. App. 1983)(quoting Martin v. Stoltenborg, 273 Ala. 456, 459, 142 So. 2d 257, 259 (1962)), this court noted that "'[a]n account stated is not founded on the original liability, but on the defendant's admission that a definite sum is due in the nature of a new promise, express or implied.'" In that case, the court noted that, according to an affidavit, the plaintiff sought to recover upon the original liability rather than upon a new promise by the defendant to pay the total account balance. The court noted that the evidence indicated only an original promise to pay, not a new promise to do so. Thus, the court determined that the claim in that case was in the nature of one for an open account and not for an account stated.

Edited by ALVA

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