Newbie - Getting sued by JDB

[poorbastard42]

Hello. I am so glad I found this site. I have spent several hours reading here, and have a lot to read yet, but I thought I would go ahead and post my info.

Ran up a lot of CC debt while laid off. Couldnt pay it - ended up just giving up.

Had several cards with balances between 2k - 5k, have settled most of those for pretty good deals. We had one Chase card we had done a consolidation on, to the tune of about 19k. Cheap rate and all that, when we quit paying it, the rate went sky high of course.

We have gotten a lot of CA letters on this Chase acct over the last couple of years, and a lot of phone calls (Multiple per day!). We ignored it all, didn't know what else to do.

Well, we finally got served with a complaint - looks like from a JDB. I put off doing anything about that till the last minute, I tried to call and settle it - I offered about 30%, but they said they couldn't settle for anything less than 80%. I told them, well, see ya in court. I finally found this site, and decided I would answer it myself, and try to fight. I wish I hadn't settled most of the others now! Oh well.

My primary concern right now - when I sent my answer to their complaint, I didn't put anything in asking for a dismissal. I have to file a copy with the court today, and i wonder if I should try to do anything about it. The details follow.

State - Ohio

venue - County Common Pleas Court

Plaintiff - Symmetric Acquisitions, LLC

C/O Cheek Law Offices, LLC

Columbus Ohio

In their complaint, they say:

1. that the account was originally a Chase issued CC. They replaced the acct # with all X's in the complaint, and went on to say "based upon the information represented and warranted to be true by Chase Bank USA NA and any other predecessors in interest of Plaintiff, the date of the last payment credited to this account was Oct. 22, 2007.

Since the account # was all X's, I answered that The defendant is without sufficient knowledge or information to form a belief as to the truth of the allegation(s) set forth in paragraph 1 of the complaint.

2. Plaintiff purchased the obligation owed by the Defendant to Chase Bank, and Plaintiff is now the legal owner

Again, I answered that I did not have sufficient knowledge or information...

3. Upon information and belief, plaintiff is owed the charged off sum of $1*,***.**, plus accrued interest of $2,***.**, for a total amount owed of $2*,***.**, plus future interest at 10% and Defendant is in default of his obligation to pay.

Since I have never had any agreement to pay this company anything, I denied.

4. Attached hereto are copies of some significant account records of Chase Bank in possession of Plaintiff and, if an account statement of the original creditor is not attached hereto, then a summary account statement prepared by or at the request of Plaintiff and/or an account affidavit listing the amount owed by Defendant is attached. Any account records of Chase Bank that are not attached are not attached because, upon information and belief: (a) Plaintiff is not the original creditor and does not have possession, custody, or control of said records; and/or ( if this action is based upon a credit card account, statements were sent monthly by Chase Bank to Defendant and are, or were, in the possession, custody, and control of Defendant; and/or © said records may be voluminous; and/or (d) said records are not available to Plaintiff and /or may have been destroyed.

There is a regular monthly statement from Chase for the period 4/25/08 - 5/24/08 attached, showing the balance, etc, but no account numbers. Since it did not have an account number, and since I don't have any way of knowing why they did not attach additional documents, I answered that Defendant is without sufficient knowledge or information to form a belief...

5. Upon information and belief, despite being sent monthly statements by Chase Bank, Defendant has /have never disputed any charges included in the balance set forth herein in accordance with the requirements of the Terms and Conditions or Cardholder Agreement issued by the original creditor to Defendant, thereby creating an account stated.

Since they did not include the terms and conditions, or cardholder agreement, I answered the Defendant is without sufficient knowledge or information...

6. Despite any language contained in any document attached to any pleading in this action or any other document filed with the court or served upon or sent to Defendant, Plaintiff is NOT seeking any judgement for attorney fees in this lawsuit.

I didn't really know what to do for this, so I just said again, Defendant is without sufficient knowledge or information...

Wherefore, Plaintiff demands judgement against Defendant for the charged off sum of $1*,***.** plus accrued interest of $2,***.**, plus future interest at 10.00% after October 0*, 2009 plus costs of this action.

I didn't address this at all. I think that is where I screwed up. I probably should have asked to have it dismissed, but I didn't. I just signed it, and included a certificate of service.

Well, any comments?

[admin]

Try reading this first. It should answer a lot of your questions.

http://www.creditinfocenter.com/legal/ive-been-sued.shtml

[merrybucks]

I would have denied all of them. After denying I would list affirmative defenses.

[poorbastard42]

Admin - thanks for the link. For some reason, I hadn't found the articles, just the forum postings. Now i have a lot more reading!

According to the clerk where I filed my answer, now I wait to see what the JDB's next move will be. I don't think I want to wait. Should I file a MTD, using the affirmative defenses? Where can I look to find case law references to support my defenses? Do I even need to do that?

Thank you all!

Edited November 17, 2009 by poorbastard42
can't stand misspellings!

[poorbastard42]

Anybody?

[admin]

I'd try discovery if it's allowed.

[poorbastard42]

Okay, we don't have much choice here except to fight. We filed our answer to their complaint, and basically said we didn't have enough info to answer any of their points, except we denied that we owed them any money! Details on that can be found at http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=298875 They responded by sending us a "Combined request for admissions and request for production of documents". Note: In the instructions, it says "In response to any of the following statements of fact, it is your position that the statement is true in part or as to some items, but not true in full or as to all items, then answer separately as to each part or item." and "For each request for admission that you have responded "deny", provide a document, or evidence you relied on for your assertion.

Here are their questions, and my proposed answers.

1.a. You have no property that is exempt from attachments (as defined by ORC 2329.66) should judgement be entered against you

b. You are not receiving and are not entitled to receive any money that constitutes child support as defined by ORC 2329.66

c. You are not receiving and ... workers compensation benefits as exempted by ORC 4123.67

d. You are not receiving and ... unemployment compensation benefits as exempted by ORC 4141.32

e. You are not receiving and ... disability assistance benefits as exempted by ORC 5115.07

f. You are not receiving and ... Social Security income as exempted by ORC 2329.66

g. You are not receiving and ... Veterans Benefits as exempted by ORC 2329.66

h. You are not receiving and ... retirement compensation, pension, annuity, or death benefits as exempted by ORC 2329.66

i. You do not have funds on deposit at any financial institution which are exempt from execution and

j. You have not informed plaintiff or its counsel that you are receiving or have on deposit at any bank funds that might be exempt from execution

Answer: The defendant admits 1. a. through j.

2. You applied for a credit card with Chase Bank USA (hereafter refered to in this document as the original creditor)

Answer: The defendant admits 2.

3. In response to that application you were issued credit card number XXXX-XXXX-XXXX-**** and the Terms and Conditions or Cardholder Agreement governing the account which combined comprised a written contract between you and the original creditor.

Answer: The Defendant objects to 3. Insufficient information is provided for the defendant to make an informed answer. (I am saying this because the text does not include the complete account number, nor text from the Terms and Conditions or Cardholder Agreement)

4. Every month between the the date when the credit card was issued to you on May * ,1993 and the date when the credit card balance was charged off you received a credit card statement from the original creditor or its assignee, starting with a zero balance on the first statement and showing all of the debits and credits posted to your credit card each month until the account was charged off on May *, 2008.

Answer: The defendant objects to 4. Insufficient information is provided for the defendant to make an informed answer. ( I am saying this because I truly don't know, and also because I don't know for sure what account number they are referring to.)

5. All of the charges made to the credit card were either made by you or authorized by you.

Answer: The defendant objects to 5. Insufficient information is provided for the defendant to make an informed answer. ( I am saying this because I don't know for sure what account number they are referring to.)

6. You have never disputed in writing to the original creditor any of the charges shown on the monthly statements.

Answer: The defendant objects to 6. Insufficient information is provided for the defendant to make an informed answer. ( I am saying this because I don't know for sure what "statements" they are referring to, however, I don't think I have ever disputed anything in writing with Chase)

7. You have never orally disputed to the original creditor any of the charges shown on the monthly statements.

Answer: The defendant objects to 7. Insufficient information is provided for the defendant to make an informed answer. ( I am saying this because I don't know for sure what "statements" they are referring to. I have disputed interest charges on the phone with Chase before)

8. You have failed to make the payments owed by you on the credit card and are, therefore, in violation of the requirement to make payments as set forth in the Terms and Conditions or Cardholder Agreement described above and are in default of those obligations.

Answer: The defendant objects to 8. Insufficient information is provided for the defendant to make an informed answer. ( I am saying this because I don't know for sure what account or T and C they are referring to.)

9. You agreed to pay in interest rate of at least 10% on any unpaid balance on the credit card.

Answer: The defendant objects to 9. Insufficient information is provided for the defendant to make an informed answer. ( I am saying this because I don't know for sure what account they are referring to.)

10. The computation by which the principal balance due as claimed by Plaintiff was calculated is accurate.

Answer: The defendant objects to 10. Insufficient information is provided for the defendant to make an informed answer. (I am saying this because they aren't saying or showing how it was calculated)

11. All of the allegations contained in Plaintiff's Complaint herein are true.

Answer: - OKAY, trick question? This is not a complaint. I did deny some of the allegations in their complaint, but it says "herein". Don't know what to say here.

12. If Plaintiff is not Chase Bank USA then the original creditor assigned all right, title, and ownership of your credit card debt to Plaintiff, and Plaintiff is the rightful and legal owner of your credit card obligation and the party which is entitled to be paid for this debt.

Answer: Defendant denies 12. Defendant has never had any business relationship with plaintiff.

13. You owe Plaintiff the principal sum of $1*,***.**, plus interest at the rate provided in the terms and conditions of 10% per annum since May **, 2008 and cost of this action.

Answer: Defendant denies 13, Defendant has never had any business relationship with Plaintiff, and does not owe anything to Plaintiff.

Well, feedback, please?

[TheBeeGuy]

In my limited experience I think you did ok. I would deny #11 since you denied some of the allegations in the complaint and some of the allegations in the RFA/RFP. No matter what they mean by 'herein', the correct answer is that you deny it.

How long ago did you file your answer? Check your local RCP. You usually have 20 days to file an amended answer without leave of the court so you can include your affirmative defenses. Even outside the 20 days you can file a leave to file an amended answer. Courts are usually pretty gracious with granting these.

[poorbastard42]

Thanks Bee Guy. I was wondering about amending my answer. I think I will look that up, and give it a try.