served summons and complaint

[yehudis]

Hi, I am new here, but have been reading A LOT.

I don't want to bog you down with too many details, but I have a question I really need an answer to. If anyone can, I would TRULY appreciate it.

My husband was just served with a summons and complaint from a process server.

We live in Minnesota and I have read about the pocket docket law we have here.

My question is, do we have to file (meaning we pay the filing fees) with the court our answer to the complaint, or do we just serve the attorney that sent it to us? They did not file it with the court themselves.

We want to dispute this debt, because our debt validation letter was the summons and complaint.

Thanks

[WhoCares1000]

You are claiming that you sent a DV letter and they sent a summons and complaint? Sounds like a FDCPA violation to me and that will be a good thing to have. Hopefully you kept the records.

Some have been successful here with filing an answer without starting the case in court. I would not recommend that and neither do most MN attorneys. That leaves you with these choices:

1) Do nothing and they get a default judgment (BAD BAD CHOICE)

2) File with the attorney and hope the judge considers it an good answer in the event that collector

3) File your answer with the court along with the form for in-forma paupis filing in lieu of your answer. If the in-forma paupis is denied, you will then be given time to pay the fee (or by then argue that the plaintiff should pay the court costs)

4) File your answer with the court fees. Consilitory Court (Small Claims) is only $60 which you would have to pay if you file a counterclaim anyways (and you will want to file a counterclaim) and regular court is about $300.

A few things for your answer besides the denial and affirmative defenses:

A) If this is one of the big guys, there was probably an arbitration clause in the contract, immediately exercise it. Trueq can give you more details on that

The FDCPA counterclaim is important and you must make the claim. The usual practice is to get you to pay the court costs, then file for dismissal without prejudice. You are out the costs and they can sue you again and again until the 6 year SOL is up (and even after that). You can effectively put a stop to that with your counterclaim because they can dismiss their claim until they are blue in the face, your claim will still stand.

When the settlement discussions begin, demand a dismissal with prejudice along with the FDCPA violation award and all court costs. You can remove the FDCPA violation award later (or maybe even court costs). Fight for the dismissal with prejudice however. That will be worth more money when they sell this down the line and the idiot in the cubicle decides to threaten you with legal action (which they will). Even the threat of passing the case to legal will be a violation.

Good Luck.

[unusualsuspect]

I'd go ahead and push an FDCPA lawsuit of my own...

False summons, and failure to validate. Easy $1k for you.

[yehudis]

You are claiming that you sent a DV letter and they sent a summons and complaint? Sounds like a FDCPA violation to me and that will be a good thing to have. Hopefully you kept the records.

Some have been successful here with filing an answer without starting the case in court. I would not recommend that and neither do most MN attorneys. That leaves you with these choices:

1) Do nothing and they get a default judgment (BAD BAD CHOICE)

2) File with the attorney and hope the judge considers it an good answer in the event that collector

3) File your answer with the court along with the form for in-forma paupis filing in lieu of your answer. If the in-forma paupis is denied, you will then be given time to pay the fee (or by then argue that the plaintiff should pay the court costs)

4) File your answer with the court fees. Consilitory Court (Small Claims) is only $60 which you would have to pay if you file a counterclaim anyways (and you will want to file a counterclaim) and regular court is about $300.

A few things for your answer besides the denial and affirmative defenses:

A) If this is one of the big guys, there was probably an arbitration clause in the contract, immediately exercise it. Trueq can give you more details on that

The FDCPA counterclaim is important and you must make the claim. The usual practice is to get you to pay the court costs, then file for dismissal without prejudice. You are out the costs and they can sue you again and again until the 6 year SOL is up (and even after that). You can effectively put a stop to that with your counterclaim because they can dismiss their claim until they are blue in the face, your claim will still stand.

When the settlement discussions begin, demand a dismissal with prejudice along with the FDCPA violation award and all court costs. You can remove the FDCPA violation award later (or maybe even court costs). Fight for the dismissal with prejudice however. That will be worth more money when they sell this down the line and the idiot in the cubicle decides to threaten you with legal action (which they will). Even the threat of passing the case to legal will be a violation.

Good Luck.

Thanks WhoCares1000.

OUr first communication from this collection attorney was a mailed summons and complaint, along with a "proof of service" letter, which we knew if we signed would be an agreement that we had been served. There was never a dunning letter sent to us. We sent the DV letter to them immediately. That was in Sept. Then a few days ago, we were served with a real summons and complaint, but it has not been filed. I have read here about the "pocket docket" law here, and have tried to find as much info as possible about it. (which is not a lot)

The OC is a hospital here in Mn.

The summons does say we have an arbitration clause. The last thing we can afford is a garnishment. So if that is our best option, then how do we exercise it?

[yehudis]

another thing...

my husband and I discussed sueing them in Federal Court for FDCPA violations, but thought, how do we prove that they never sent us a dunning letter? Wouldn't it just be a case of our word against theirs? Couldn't they just say they sent one, and we ignored it? How would we prove it?

Also we were worried that if we did sue them or file a complaint with the AG that would piss them off, and they would not negotiate a payment plan.

If we owe this, and they have a right to collect, then we want to pay, but we can't afford the amount they are claiming we owe all at once. We would like to make payments, affordable payments.

[WhoCares1000]

OK, they have already started the lawsuit process against you. They intend to win and then romp through your bank account and wages by getting a default judgment. How much madder would you make them if you sued back and/or complained to the AG? At this point, you cannot make things worst by suing them back and making a complaint.

If the claim is $7500 (and it sounds like it is), then you can go through Conciliation Court where the fee is $80 (went up recently) and each person making a claim has to pay the fee anyways so if the plaintiff is forcing you to pay the fee, you may as well make a counterclaim anyways. Avoid Federal Court for now as that can get expensive.

As for your claim, if you have the green card stating that they got the DV and the case is indeed in conciliation court, your word for not receiving the verification will probably be enough. Conciliation court is very informal, there will be no discovery and is more like Judge Judy without the drama.

I will almost bet that the opposing party has nothing against you and will want to drop this as soon as possible (or make some sort of deal to settle this). That is why you want a claim, so that you have some leverage in the negotiations. Otherwise they can drop this and pass it on to the next company and do this all over again. You want this done for once and for all.

Finally, you say this is a hospital debt? I would look at your credit report and see if this is on there. If it is, you can almost be certain there will be a HIPPA violation which you can then add to your claim.

[yehudis]

Hi WhoCares 1000,

the amount they are claiming we owe is $9600.00 so it is too high for concilation court, we would have to go to district court. I agree about pissing them off, they are out for blood so we might as well make them fight for every drop.

We only have till the 11th of Nov to file our answer with them, so time is an issue. Also we live over a hundred miles from the fed. courts, my husband works over 60 hours a week and we only have one old car, so getting to the fed. court in Minn, is next to impossible before the deadline. The court they are suing us in is our district court in our city.

I like the idea of exercising our right to arbitration, and asking the judge to order them to pay that fee.

So I am assuming we would have to file an answer to the complaint, by sending it to the collection att by CRRR, and also filing it with the district court, along with the request to wave the filing fee.

My questions are then:

1. How do we file on a summons that has not been filed with the courts yet?

2. How do we ask for the arbitration, do we just include it in our answer?

(BTW it was the summons that stated we had a right to arbitration)

3.Do we have to have a court case # included in our answer we send to the attorney, or do we send them one on the same day we file even though we may not have the #?

4. Is there a standard legal form we must use to request arbitration?

5. what is an HIPAA violation?

Forgive all the question, we have never been sued, and have no idea what to do, or how.

And Thank you all so much for all the answers and help you give to everyone here!!!!!

Edited October 29, 2009 by yehudis
add a question

[WhoCares1000]

First to answer your questions:

1) You file in your local county courthouse at the clerks office. They should see enough of these to be able to assist you in handling it (they can give advice on process, not law).

2) In your answer as an affirmative defense, you elect to exercise the arbitration clause. I however would step back from this. Most of the arbitration issues here deal with consumer debt and the issues may be different with medical debt so now I am wondering if this is a good idea.

3) The court clerk can tell you what is needed in the answer. You can leave a space and write it in ink later and that is legally allowed.

4) Simply put it in your answer under affirmative defenses

5) Health Information Privacy and Portability Act. This is a federal law that governs how health care information is supposed to be passed, including medical billing. Most CA's have no clue about this law and as such, usually violate it by putting information in your Credit Report that is not legal to put in.

Right now, don't worry about the federal courts. This can all be dealt with to start in the state courts. The attorney may try to move your claims to federal court but cross that bridge when the time comes. Since this is regular court, if you have the green card saying you served DV, then the judge should put the burden of proof on the CA as to whether they sent it and you received it.

So right now, you have 1 week to learn MN Civil procedure and get ready for the fight of your life. You may want to consider at least consulting with an attorney prior to filing your answer. You never know what may happen and you could be eligible for legal assistance. I suggest this because it seems as though you are lost as to what to do and most of us, myself included, are not lawyers. A good lawyer will tell you how to proceed (or even if the best way to proceed to is negotiate with the CA).