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Possible suit from FIA


DCusr
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Here's a situation

Appears a "summons" w/ complaints from a law office was received awhile back. Basically, stating they represent FIA, but it has the attempt to collect a debt notice on it. They included some copies of statements of a BofA account, as well. Plus an affidavit of someone "familiar w/ how FIA keeps it's books". (In another state and month for notary is unreadable) They state they filed it in the circuit court, but never did according to the clerk. Now another notice was sent stating they assigned this to some other company locally to "serve" Defendant again. They included the original "summons" they mailed earlier. Seems follow up to see if something was really filed is needed. No case number or specific court/response date. The fact that they filed a previous "summons" and now state to "serve" Defendant again could seem to be an issue in itself. This would be for VA.

No "Defendant" hasn't contacted or validated. Should validation be done based on what they sent? Would that come w/ Discovery? Should complaint be answered line by line, use a graduated sworn denial, or a general denial. What would be complaint responses? If this were a very old acct bought by BofA would statements generally be enough or would a signed contract be relevant? Seems most places statements are enough if you are an OC, as an "account stated". Appears they state last pmt was end of 09. Is FIA an OC for BofA? I have seen info about "motion to compel arbitration" or "option to elect arbitration". Arbitration seems to be a heated area. That might be useful, if there were some agreements that had beneficial statements in them regarding arbitration. If an account had existed for a longtime especially, isn't it easy for them to show whatever agreement they want though? Credit companies have insane constant changing small print agreements. Seems they could wiggle or show whatever to deal with arbitration. Any refs or advice appreciated.

Here is outline of complaint.

1.The Defendant applied for, received, and activated a credit card, with account number xxxxxxx. This later fell into default. After November 2006, this account was administered by the Plaintiff, FIA Card Services, N.A. Upon default and charge off, the account number was changed to xxxxxxxx.

2.The Defendant is responsible for money loaned on the account, plus unpaid fees and interest incurred to the account.

3.The Defendant failed to make timely payments is in default on the account and the balance as set forth on the Affidavit and Statement of the account attached hereto and herein by reference marked Exhibit "A" remains due and owing to Plaintiff from Defendant for the above-referenced credit account. The last payment on the account was Nov. 30, 2009.

4.Demand has been made upon Defendant for the balance due and owing and Defendant has failed to pay same.

Edited by DCusr
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Any input here? Supposed to be service any day now. Somehow a case number is now filed w/ courts saying it was filed months ago, that wasn't there before. Because VA appears to be nail and mail, the concern is they can say they serve you and don't. This is mentioned because there now is a case number and a default summary judgment is not desired. The most important thing appears to be answering complaint. Is there any input on this? Complaint seems straightforward so doesn't seem as easy to address as some complaints. Research is being done, but definite uncertainty regarding how to answer. Any opinions on the website howtoanswerasummons.com? (not sure if a link is ok) Because this will be pro se and a formal circuit court information and steps seem more important, but even fumbling is better than lying down.

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Thanks for links. This is for VA. I have seen 3yrs for VA so I think that would be accurate. Doesn't seem completely clear, but they seem to be stating last pmt was made in 09. So not sure SOL would be a real issue.

Would a credit report be useful? The term write off and charge off I have seen, but if they charge it off and are the OC that seems it might be diff than selling it. I have seen conflicting info on what they actually need to document an alleged cc account. Seems diff state law would apply, but many seem to say copies of some statements w/ account numbers is good enough. To me doesn't seem sufficient. Not sure where to look for case law. This stuff is really mind boggling especially weeding through what is really relevant or not. If it isn't clear who is benefiting, that seems to me to be important regardless. Administrating an account and owning an account also seems confusing to me. The idea that a sig or clear agreement isn't even an issue just seems odd to me.

Edited by DCusr
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Here's a situation

The last payment on the account was Nov. 30, 2009.

Have you any records showing last payment date?

Have you pulled your credit report to see when BofA or FIA is reporting as your last payment date?

Have you gone to the courthouse and pulled the file in your case to see when it was filed? ... what was filed?

Yes, you need to answer the suit .... you only have so many days to do so and not being from VA I don't know how many but, RebelLady gave you links to VA's Court Rules that will give you that information.

Best advice I can give is to read everything you can on this site and to really get aquainted with the Civil Procedure Rules.

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Yeah...looks like you'll have 21 days to respond to the complaint:

The party upon whom this summons and the attached complaint are served is hereby notified that unless within 21 days after such service response is made by filing in the clerk's office of this court a pleading in writing, in proper legal form, the allegations and charges may be taken as admitted and the court may enter an order, judgment or decree against such party either by default or after hearing evidence.

If you don't file your answer within 21 days, a default judgment will be entered so try to have your answers ready...

RL

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There hasn't been an official "serving" atm, just court case filed. I mentioned docs included. Copies will be ordered. No credit check has been done, but I assume showing any kind of pmt would only be relevant if it showed an SOL issue? Shouldn't the proof be on them since they are initiating anyway? Not sure what can be done there. The fact that there is an actual case number now showing it started mnths ago, but no actual service of official "summons" is confusing. Supposedly the serving is in "process" and not completed yet. If I understand correctly. If it were just 21 days from a court filing mnths ago, it would be too late.

The biggest concern atm is how to deal w/ the complaint. Reading responses to complaints, what is needed, the lang etc... appears to be pretty confusing. Getting anything filed seems to be better than nothing.

Edited by DCusr
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Yeah...it looks like the SOL won't be an issue here. And yes, the burden of proof will be on them...they must prove their claim.

You also need to look up affirmative defenses in the Rules of the Supreme Court. You will need to include some in your answer. Some people say throw everything at them and see what sticks...some people feel its best just to keep it simple. That's up to you. Look in the stickies for ADs and see which ones fit your situation. Also...FYI

Rule 3:7. Bills of Particulars.

(a) Timing and Grounds. On motion made promptly, a bill of particulars may be ordered to amplify any pleading that does not provide notice of a claim or defense adequate to permit the adversary a fair opportunity to respond or prepare the case.

(B) Striking of Insufficient Bills of Particulars. A bill of particulars that fails to inform the opposing party fairly of the true nature of the claim or defense may, on motion made promptly, be stricken and an amended bill of particulars ordered. If the amended bill of particulars fails to inform the opposite party fairly of the true nature of the claim or defense, the pleading not so amplified and the bills of particulars may be stricken.

© Date for Filing Bill of Particulars. An order requiring or permitting a bill of particulars or amended bill of particulars shall fix the time within which it must be filed.

(d) Date for Responding to Amplified Pleading. If the bill of particulars amplifies a complaint, a defendant shall respond to the amplified pleading within 21 days after the filing thereof, unless the defendant relies on pleadings already filed. If the bill of particulars amplifies any other pleading, any required response shall be filed within 21 days after the filing of the bill of particulars, or within such shorter or longer time as the court may prescribe.

RL

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Will look up bill of particulars, but can you give a simple definition of how it is related to an alleged cc account. I guess I am referencing copies of statements etc... It is way to easy to get confused by the terms and procedures. Thanks for the help.

Not clear to me what can be asked for or stated in answer. Seems with what was sent. Most information would be asked for in discovery seems. If a graduated sworn denial is filed that seems to be enough or would answer line by line be included?

Edited by DCusr
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In law, a bill of particulars is a detailed, formal, written statement of charges or claims by a plaintiff or the prosecutor given upon the defendant's formal request to the court for more detailed information. A bill of particulars may be used in either criminal defense or in civil litigation.

An insufficient response to a request for a bill of particulars may be grounds for dismissal of the claim, or other sanctions against the responding party. In civil cases, a bill of particulars is a pleading, which "amplifies" the complaint, but can also act as a discovery device or tool.

Also, look up posts by rikkivs. She explains in detail what a bill of particulars is and how to use one in a cc case.

RL

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I honestly think you can get just as much information and help here on this site as you can anywhere on the Net.

The people here are knowledgeable and intelligent and if they don't know something, rather than taking a chance and giving out wrong information...will look it up themselves before answering. Most of us have been there, done that and have stood in your shoes. Some of us are still waiting for that summons...just like you. We're all learning together and helping one another through and that's what makes it so valuable to me.

You're dealing with an original creditor rather than a JDB. That will make your battle a little harder and will require a bit more reading and learning but its not an impossible nut to crack.

If you have questions or concerns...look it up yourself first. If you're still confused and don't understand something...post your questions here. Someone will be willing to help.

RL

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Appreciate the input. I have been researching and will continue. Don't want to sound like I want some magic answers, lot of good info here. It's just that once you start researching and reading it can actually get more confusing. Something I may know in plain english, written in legalese is a whole other thing. Then throw in a whole other way of thinking and vocabulary and it gets daunting. Seems some situations have more holes than others.

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I looked at the virginia links and can't find much on what is required for alleged cc's. One ref to cause of action on account stated and mention of account stated agreement. Trying to find out whether asking for a signed agreement is relevant. I mean if they say you have an open account and here is our agreement? Seems pretty one-sided. Also still not clear on whether a sworn graduated denial should be filed in addition to complaint response or as an answer to complaint. Seems like it could just be an answer in itself. Filing a specific response to complaint seems good, but this is harder the way this complaint is written and my concern is saying the wrong thing or something that looks conflicting. Also want to make sure I got the basics from what I have read, but basically if you are not denying you are admitting. Also if you do not know w/ certainty your option would seem to be deny? Make sense?

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Ok I am researching BOP and seeing information that says it wouldn't apply for 'account stated'. Is there a difference in an open account or account stated? I think in VA or most places cc's would be one of those 2. Would the approach then be to try to support whether it is contractual w/ case law? Sounds like they don't need anything to show an account.

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To my undersatnding the graduated denial is a doc that pretty much stands on its own.

Not part of the answers to a complaint.

Virginaia does have some different rules of Civil Procedure, depenting

on your county from what I gather.

A graduated goes something like this.

Sworn Denial:

I YOUR NAME HERE deny this is my debt and if it is my debt, I deny that it is still a valid debt and if

it is a valid debt, I deny the amount sued for is the correct amount.

_______________________

YOUR NAME HERE

DEFENDANT

YOUR ADDRESS HERE

Certificate of Service HERE

I have read where you shoukd file this with your motion to dismiss.

As I have no court/hearing date yet... they have not pushed for it yet...

I just wanted to know if I can include with my Interrogatory exchange, now,

but in any event this is not for answers to a complaint.

I did reply to your PM .

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Thanks again. Any feelings about the docs pack on howtoanswerasummons.com or other similiar?

This offers a good basic outline if you have not done one before.

Gives some great, not all, affirmative defenses and also some excellent

points for your rogs to them, again not all.

I do have this and refer to it as I am doing things just as a back up.

Also, another excellet one is an e-book Stick It To Sue Happy Debt Collectors

by Allen Harleroad.

Adds a few different things.

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Ok I am researching BOP and seeing information that says it wouldn't apply for 'account stated'. Is there a difference in an open account or account stated? I think in VA or most places cc's would be one of those 2. Would the approach then be to try to support whether it is contractual w/ case law? Sounds like they don't need anything to show an account.

Sent you another PM...

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Thanks for help. I had a copy of sworn graduated denial. Just a bit of info on it's purpose. I find the Affirmative Defenses for my complaint difficult to apply. Never mind some saying don't include them til later. I guess that is an attachment to answer. I have seen motions talked about before answering a summons and after. I have seen people say file discovery w/ answer also and some say after. Seems like you could file alot of things. Learning the basic outlines and order of answers, motions, rogs etc... Thanks for feedback on forms. I am scouring, they are very helpful to use as structures.

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Ok, need some feedback on understanding some basics.

Sworn graduated general denial can be filed on it's own, but would be a response or answer. So you you could have that, specific answers to complaint, Then attached affirmative defenses documents. Then a request for discovery, docs. (how is a request different from a motion?). Would interrogatories come later or also at same time. Trying to get an idea of how much gets filed at once, whether you only have 21 days for all that, if that is what time you have to answer. In general, I know state rules come in here. Would that be listed under civil procedure or judicial procedure? I am guessing judicial? The supreme court would be where to look for case law supporting the AD? Does that need to be state specific? (wow huge amt of stuff to get and learn in so short of time)Thanks again.

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  • 3 weeks later...

Wondering about what I have now and notarization. I am wondering if notarization on some things is over kill. It can't hurt, but adds alot time/complexity and cost-wise. Does this add anything? Certificate of Service is one thing, but I just can't find anything on notarization.

I have looked at my "local rules" and there aren't any. They have some basic guidelines. Other places to check?

I looked at civil procedure code here and haven't really found much.

So should items listed be notarized, is affidavit too much? Opinions, input. I assume original notarized docs go to court and copies elsewhere?

1. Answer w/ affidavit -to be notarized?-cert of service at end

2. Affirmative Defenses w/ affidavit- to be notarized?

3. Sworn GD - w/ CoS and notarized?

4. MTD - Notarized?

5. Order for Dismissal - No notary, I assume

6. Verification - Notarized?

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I hope I do this right as this is my first post.

Does this plan seem OK!

Claim is $7,796.00 Credit Agreement "See Exhibits and Affidavit incorporated by Reference. On Warrant in Debt, that was stuck in my front door.

Plaintiff FIA Card Services, N.A. C/O Glasser &Glasser P.L.C.

OC Bank of America - pulled credit CO last pay 12/08

DV sent to Glasser & Glasser. They sent copy of BA statement dated 7/29/09. Sent another letter saying not to be complete. "Please send details on how this final figure was calculated.

Did not hear anything, then were mailed these documents. Servicemembers Civil Relief Act and Affidavit of Account FIA card Services, N.A. KA Bank of America, N.A. signed by OPS Analyst and notorized. in North Carolina county of Gilford.

So decided to go to court and dispute claim 11/05/2010 and then go from there. Will give me time to read, learn and study RCP's. Only have $1000.00 in cash to settle.

Thanks for everyone's time

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