Being Sued by Discover

[dudley3874]

Ok, extremely new at this, just trying to make sense of all that I am reading and trying to understand what to expect.

I got a "letter" in the mail from an agency stating they would represent me in court for my pending civil case. So I went online to my county clerks office in Florida to see if there was a pending case.

Bingo, Discover filed:

ACTION DATE TEXT

11/30/2009 CIVIL COVER SHEET:

11/30/2009 COMPLAINT:

12/01/2009 20 DAY SUMMONS ISSUED TO DEFENDANT AND HANDED TO PROCESS

12/01/2009 SERVER:

I have not been served yet, it is the 9th of the month. I (in reading) understand that I have to show up on the 20th or 21st. But I have not been served. I am not disputing the owed debt, financial difficulties led me to let go of five credit cards. So far due to employment, I have not taken any action on letters that have been sent.

With regards to this pending court date, do I go and file an answer on my own? Can I also; "File a motion for Extension of time" due to not having been served so far? I will be talking with our family attorney on Friday, but want a little insight.

My goal is to settle and pay the debt that is manageable for my new income. I was on unemployment, got a low paying job, now have a better paying job.

About the account, it shows a charged off status on my credit bureau as of 3/09. I did receive a couple of letters from Zakheim and Assoc's.

I know this is real general, but the case docket is showing: PLAINTIFF=DISCOVER BANK DEFENDANT=myself

Thanks for any insight to all.

D

Edited December 12, 2009 by dudley3874

[merrybucks]

I have not been served yet

Just keep track you will be.

(in reading) understand that I have to show up on the 20th or 21st

Why do you have to show when you haven't been served yet. The clock for answering starts when you are served not when the complaint is issued.

[dudley3874]

Thanks for the reply...... I will post more if my attorney cannot help or assist me. I believe this suit is from the JDB, because I found a letter from them that stated an offer to settle NLT Dec. 18th. But I could be wrong and the OC is serving me.

[dudley3874]

Ok,

got served today. Discover Vs. Me

Plantiff/Plantiff;s Attorney is named:

Zakheim & Associates, P.A.

Attached to it was a State of Ohio notarized letter from a Tinisha Williams who is a legal placement Account manager for DFS Services LLC

Also attached is a statement from Discover from this year.

Funny thing is the day before, I received a "settlement" offer dated 11/30/09 from the same Zakheim & Associates which states 60% settlement offer.

So is Discover suing or Zakheim?

[dudley3874]

Ok, so a little digging, Zakheim called my house today, have it on caller ID, no message left just a call.

I read online that "a creditor or debt collector suing on a credit card or contract MUST attach the application (the contract) to the lawsuit. The suit can be dismissed if the plantiff fails to do so. Thoughts?

Also, called Discover, used the prompt system and was referred to call Zakheim & Associates, so who owns this? Discover or ?

Is Discover making me deal with their locally hired attorney? This is confusing to say the least.

Thanks for any and all reply's!

[MG05]

Who is the plaintiff in your case … That will tell you who is suing you? Just relax and start reading this site … a couple of really good people from Florida with lots of legal experience (FlaLawyer, Nascar and Divemedic) are who I suggest reading. Pay attention to what you read because Florida is a bit different. Good luck and if you need anything drop a line.

[dudley3874]

Thanks for the reply,

It states that Discover is the plaintiff, on the second page stating if I choose to represent myself, when I file the written response. To send a copy to the following: "Plaintiff/Plaintiff's Attorney named below: Zakheim & Associates, P.A.

[fattyz]

In my experience Discover is probably the OC and probably still has the account. You have to try a little harder when you call. If you ask for the 'settlement department' they will tell you if they still have your account open. I got transferred by the prompt thing as well, and was being sued for 2 accounts by a law firm I assumed was a JDB. I was wrong, it was Discover being represented by the law firm. The law firm is a notorious JDB, but in this case they actually represented the OC, Discover bank. I settled with Discover directly for 50%, cutting out the law firm after having made them appear in court about ten times.

Good luck

FattyZ

[dudley3874]

Thanks for the reply, I have a settlement letter dated 11/30/09 from the law firm representing Discover, for 60%, also found a "buried" settlement offer for 40%. Do I call Discover back to speak to the settlement department, or go ahead and file my written response with the court and talk to the "law firm" about settling?

Your insight is appreciated.

[DebtGuru]

Discover is the original creditor here, Zackheim is the law firm representing them. You have several options available depending on your situation, but I need some more information:

1) How much are you being sued for exclusive of court costs, interest, and attorney's fees? This will be listed in your complaint.

2) Which county are you being sued in? (I assume you're in Florida)

3) How old is this debt?

4) At the top of the complaint it should say "IN THE ______ COURT IN AND FOR ___________ COUNTY" or something to that effect. What does it say exactly?

5) What is your desired outcome?

Note: Do not take this as an offer or solicitation of representation. Do not consider this as legal advice. I am not your attorney and you are not my client.

[dudley3874]

Would like to post more, however am not sure if Discover or the Attorney could be reading these posts. Just want to know if based upon the current settlement offer that is dated until 12/18/09, what to do, answer the summons or call and make arrangements to pay?

[DebtGuru]

Would like to post more, however am not sure if Discover or the Attorney could be reading these posts. Just want to know if based upon the current settlement offer that is dated until 12/18/09, what to do, answer the summons or call and make arrangements to pay?

Trust me, they're not going to be monitoring this site - the law firm likely handles thousands of cases monthly. If it would make it more comfortable for you then you can just provide approximations for the amounts they are seeking. The reason why I ask the county name is because there are certain techniques that work well in certain counties.

Since Discover is an OC, the chances are greater that they can prove their case. I'm asking these questions to determine whether or not it's worth answering the summons and fighting it or attempting to pay it off. Either way, you should rarely have to pay the total amount they are seeking - they have settlement authority and you need to be aware of that.

[dudley3874]

OK,

1) How much are you being sued for exclusive of court costs, interest, and attorney's fees? This will be listed in your complaint.$10,000.00

2) Which county are you being sued in? (I assume you're in Florida)Martin

3) How old is this debt?Last paid on the account Sept. 08 or about

4) At the top of the complaint it should say "IN THE ___Civil___ COURT IN AND FOR ____Martin_______ COUNTY" or something to that effect. What does it say exactly?

5) What is your desired outcome?I just want to get back on my feet, am trying to figure out the settle offers vs. filing a suit, is that to push me to settle?

I am out of town and don't have the document in front of me.

I lost my job and was on unemployment, then got a job (low paying) chose to ignore calls and letters, just too much to deal with, trying to keep current on secured loans. I have two offers for settlement from the Debt Collector Zakheim, one in the amount of 40% from a few months ago, another right at the same time that this was filed as a suit for 60%. We are trying not to file Chapter 13. Spouse is in the same position with some cards as well, nothing filed on her.

Attached to the summons was the cover page with the complaints,

a sworn statement from a Discover employee. A copy of a credit card statement. No contract or application.

The second page at the bottom states this is from a Debt Collector attempting collect a debt. So am not sure if OC still has the debt. I have about 62k in CC debt. House is upside down with a equity line of credit loan, so tanked about 80k on the house. I have to file an answer to this summons, so just trying to ensure a default does not happen on me, then have the rest come running at the "smell of blood".

[DebtGuru]

OK,

1) How much are you being sued for exclusive of court costs, interest, and attorney's fees? This will be listed in your complaint.$10,000.00

2) Which county are you being sued in? (I assume you're in Florida)Martin

3) How old is this debt?Last paid on the account Sept. 08 or about

4) At the top of the complaint it should say "IN THE ___Civil___ COURT IN AND FOR ____Martin_______ COUNTY" or something to that effect. What does it say exactly?

5) What is your desired outcome?I just want to get back on my feet, am trying to figure out the settle offers vs. filing a suit, is that to push me to settle?

I am out of town and don't have the document in front of me.

I lost my job and was on unemployment, then got a job (low paying) chose to ignore calls and letters, just too much to deal with, trying to keep current on secured loans. I have two offers for settlement from the Debt Collector Zakheim, one in the amount of 40% from a few months ago, another right at the same time that this was filed as a suit for 60%. We are trying not to file Chapter 13. Spouse is in the same position with some cards as well, nothing filed on her.

Attached to the summons was the cover page with the complaints,

a sworn statement from a Discover employee. A copy of a credit card statement. No contract or application.

The second page at the bottom states this is from a Debt Collector attempting collect a debt. So am not sure if OC still has the debt. I have about 62k in CC debt. House is upside down with a equity line of credit loan, so tanked about 80k on the house. I have to file an answer to this summons, so just trying to ensure a default does not happen on me, then have the rest come running at the "smell of blood".

Possible things you could do:

1. Contact your attorney if you have one.

2. Call Zackheim and find out how much in total Discover is seeking - suit amount, interest, court costs, and attorney's fees. Don't be surprised if it's more than what's listed on the complaint you were served with. If you're represented, inform Zackheim of this: they will cease calling you.

3. Answer the complaint before your 20 days is up.

[dudley3874]

DebtGuru, am unable to answer your PM don't have enough posts..... Am in the process of submitting my Written response to being served. Our attorney referred us to a local attorney here. Thanks for the offer in the PM

[dudley3874]

I would like to get further advice on this matter as I will be filing my response on Monday.

Discover Bank

vs.

Myself

Complaint

The Plaintiff sues the Defendant and alleges:

Count I-OPEN ACCOUNT

1. This is an action for damages which exceed $x,xxx.xx but do not exceed $xx,xxx.xx

My written response would be: Defendant denies the allegations contained in Paragraph 1 of the Complaint as Defendant is without

information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged assignments and entitlements.

2. The Defendant made purchases of various and diverse consumer goods and/or effected cash advances through the use of his credit card obtained from the Plaintiff on account number xxxxxxxxxxxxxxxx.

My written response would be: Defendant denies the allegations contained in Paragraph 1 of the Complaint as Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged assignments and entitlements.

3. Defendant has failed to pay the balance due on the account.

My written response would be: Defendant denies the allegations contained in Paragraph 1 of the Complaint as Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged assignments and entitlements.

4. Defendant(s) owe(s) the Plaintiff $xx,xxx.xx this is due with interest according to the attached account (Exhibit A).

My written response would be: Defendant denies the allegations contained in Paragraph 1 of the Complaint as Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged assignments and entitlements.

WHEREFORE, Plaintiff demands judgment against the Defendant(s) for damages of $xx,xxx.xx and any further relief this court deems just and proper.

Count II- ACCOUNT STATED

5. Plaintiff repeats and realleges the allegations of paragraph 1 and 2 as if fully set forth herein.

My written response would be: Defendant denies the allegations contained in Paragraph 1 of the Complaint as Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged assignments and entitlements.

6. Before the institution of this action Plaintiff and Defendant did not object to the statement.

My written response would be: Defendant denies the allegations contained in Paragraph 1 of the Complaint as Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged assignments and entitlements.

7. Plaintiff rendered a statement of the account to the Defendant and Defendant did not object to the statement.

My written response would be: Defendant denies the allegations contained in Paragraph 1 of the Complaint as Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged assignments and entitlements.

8. Defendant(s) owe(s) the Plaintiff $xx,xxx.xx this is due with interest according to the attached account (Exhibit A).

My written response would be: Defendant denies the allegations contained in Paragraph 1 of the Complaint as Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged assignments and entitlements.

WHEREFORE, Plaintiff demands judgment against the Defendant(s) for the damages of $xx,xxx.xx and any further relief this court deems just and proper.

I have been reading and am going to ask the Clerk at the court on Monday the following:

1. Can I file a Motion to dismiss in Lieu of Answer. (Due to the original Credit Card Contract was not attached.

2. If no to Question # 1, when do I file it.

What else? Thoughts or opinions? I have a meeting with a BK attorney first part of January, but need to answer so they do not get an automatic judgment.

I have looked at my Credit report:

Status:

Account charged off. $10,094 written off.

Once again, thanks for the replies..........

Ain't life fun

Dudley

Edited December 19, 2009 by dudley3874

[david9041]

Dudley3874 do you have your DEFENSES ready for your answer to the complaint ? If they have not furnished you with an agreement , use that to your advantage state that without the alleged agreement you have no idea what your arbitration rights may be .

Also put in your Answer that Defendant reserves the right to Trial By Jury , These two things will give you a lot of leverage if your going to later work out a settlement deal , set the % you want not the amount they offer.

[BrokeBob]

Discover DOES have an Arbitration Clause. I have not been able to find one, but I have found proof that such a clause exists. This thread includes a link I found to a legal brief Discover submitted that quotes from their arbitration clause. If no such clause existed, they wouldn't quote it. You might print the link out, and attach it as an exhibit to show that such a clause exists, and demand that they give you a copy of the cardholders' agreement, including the arbitration clause

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=298748

[david9041]

BrokeBob , That's good to know , so if he request the agreement and they stall he can claim that they are purposely concealing the information to deny his rights to arbitration .

Dudley3874 , If it's the same as Pasco County you will have a pretrial conference , at that conference do no more than ask what the alleged amount is and how was that amount calculated and request a copy of the alleged agreement . Tell them you are here to answer the complaint . I have at that point gave them a discovery request and your done , you then wait for them to answer discovery and they will then send you a request for discovery , treat it like a game because it is , they will tell you nothing and you make sure you tell them nothing . Push the fact that you need the agreement and without it you do not know what rights you may have with arbitration . Much later you can offer a 25% settlement or what ever % you can handle if your thinking of BK then consider your option to elect arbitration , it will buy you a lot of time to decide what you want to do

The most important thing is not to let this situation get you uptight , that is a tool they use against you and it only works if you allow it to .

[rikkivs]

Basically it looks like you are trying to be evasive in your answer. You have to put more meat on the bones so to speak.

1.Did you receive statements from the creditor on a regular basis?

2.Did you ever call the creditor to discuss the account for any reason?

3.Do you owe what they are claiming or have they raised the true amount you charged via excessive fees etc?

4. Have you ever complained to the creditor about late fees or over the limit fees etc?

Answer these questions and more definitive advice can be given.

However, David is right; you need to add some affirmative defenses to your answer. Try these:

1.Statute of Limitations (although you made the last payment about a year ago, you ought to assert SOL because it goes from the date of first default not the date of your last payment;)

2.Unjust enrichment - The fees are so excessive that to grant fees over and above what was charged on the card would be a flagrant violation of legal ethics.

3.Breach of covenant of fair dealing (creditor was unreasonable etc)

4.Payment and offset - this means that you have paid on the account and want those payments to be credited to the account less the late fees and other fee income for these stupid banks.

5. In Pari Delicto - Mutual mistake of both parties i.e. they were charlatans and you were a mark who could not afford their lopsided agreement in the first place...

6.No subsequent agreement between parties after account default. This defense is extremely important because it goes to the heart of the ACCOUNT STATED cause of action. Essentially they are saying that since they mailed you statements and since you never objected, that you MUST owe the money. However, you guys must have a meeting of the minds and create a different agreement then the first agreement to pay the money otherwise their account stated claim will fail.

7. Request a bill of particulars which should show the debits and credits on the 'alleged' account as well as interest rate calculations.

Best wishes.

[dudley3874]

All, thanks for the responses' it is appreciated.

David, no I don't have defenses ready, Discover was unwilling to work with me on payments and required you to default before they would tell you too bad. It is my debt, however, I am just now getting on my feet. I do know they did not supply the written contract or application in this suit.

BrokeBob, thanks for the link, i will print that out.

Rikkivs:

1.Did you receive statements from the creditor on a regular basis?

YES

2.Did you ever call the creditor to discuss the account for any reason?

YES attempted to work out hardship, but they did not want to discuss anything.

3.Do you owe what they are claiming or have they raised the true amount you charged via excessive fees etc?

YES, Overlimit fees and jacked the interest rate up.

4. Have you ever complained to the creditor about late fees or over the limit fees etc?

No

I understand that I have to file a written response before December 30th. Provide the Plaintiffs attorney a copy. But as far as Defenses, this is included in the Written response?

Thanks,

D

[david9041]

All, thanks for the responses' it is appreciated.

David, no I don't have defenses ready, Discover was unwilling to work with me on payments and required you to default before they would tell you too bad. It is my debt, however, I am just now getting on my feet. I do know they did not supply the written contract or application in this suit.

BrokeBob, thanks for the link, i will print that out.

Rikkivs:

1.Did you receive statements from the creditor on a regular basis?

YES

2.Did you ever call the creditor to discuss the account for any reason?

YES attempted to work out hardship, but they did not want to discuss anything.

3.Do you owe what they are claiming or have they raised the true amount you charged via excessive fees etc?

YES, Overlimit fees and jacked the interest rate up.

4. Have you ever complained to the creditor about late fees or over the limit fees etc?

No

I understand that I have to file a written response before December 30th. Provide the Plaintiffs attorney a copy. But as far as Defenses, this is included in the Written response?

Thanks,

D

All 5 of my cases have been in small claims and I think you might not be because your amount is over 5,000 . Are you in small claims court ?

Do not forget to include a demand for a jury trial and if you request discovery be real clear that without the agreement you are being denied any arbitration rights you may have . right now find out what your arbitration clause is , I hope JAMS is listed for you . They will try their best to get you to agree for an amount and unless it is some amount you could live with don't do it while they are doing their talking they will be trying to get you to make a statement that you owe the debt , remember YOU DO NOT HAVE ENOUGH INFORMATION TO MAKE A DECISION ABOUT THAT AND WITHOUT THE ALLEGED AGREEMENT YOU DO NOT EVEN KNOW WHAT YOUR RIGHTS MAY BE .

Rikkivs , thanks I just added a couple of your defenses to my list .

[dudley3874]

It states at the top of the Complaint: In the County Court for the 19th Judicial Circuit in and for XXXXX County.

right now find out what your arbitration clause is , I hope JAMS is listed for you .

What is JAMS?

Thanks

[david9041]

It states at the top of the Complaint: In the County Court for the 19th Judicial Circuit in and for XXXXX County.

right now find out what your arbitration clause is , I hope JAMS is listed for you .

What is JAMS?

Thanks

Go to the arbitration section of this site and read Trueq 's posts he can advise you , every thing he has said would work I tried and it did work , when you make up your answer to the complaint list your defenses . when you appear for your pretrial be careful when talking to the mediator , he will go on and on about how Impartial he is but don't buy into that .

Make sure the sequence of what you do is done in a way that later you can clearly show the judge that you fully intended to use your arbitration rights but the Plaintiff purposely concealed the agreement from you .

Like I said before , what you do depends on your plan , 1st choice settlement or BK ? I have seen settlements as low as 30% of balance with no interest . If you show them you are going to fight hard , use your arbitration rights and then go BK if you lose arbitration you will get their best settlement offer .

You could call the court and ask if you are in small claims or not ? I have only been in small claims and have 5 cases .

[dudley3874]

David,

Thanks will go and read what you have recommended. I will post any more questions if I come across them.

D