Recieved Summons yesterday, does this seem like the right path?

[Isleepy1]

I think I received a Summons from Machol & Johannes (M&J) yesterday afternoon and I've been researching since. The plantiff is a JDB and original creditor is Cap One with a full account number for a debt of $1026. I was not home and my mother signed for the summons. She said the person had no Identification showing nor did she ask for any. She did sign something but did not read it. The reason I mention all this is the Summons is for a "Linus C Polt aka Linus V Polt" My name is Linus C Van Polt and I can not find any reference to this account on my credit report currently or in older reports dating back to 2009. This account could be mine possibly as my record keeping skills are not the best. And bills do come frequently to Linus V Polt due to computer issues.

The only documents (evidence) included is a generic customer agreement from 2005 with no signatures/ identifiable information and the arbitration agreement as well from that year. My court date isn't until 5/5/11 so I have some time to research this and fight it. My answer doesn't have to be filed until 5/4/11 per Colorado law. (I do not remember opening a Cap one account in 2005 as well)

My thoughts are first to validate this debt is even mine by sending validation letters to JDB and M&J. Because at this point I'm not sure the debt is mine. Then if it is proceed from there.

My questions are:

Whats the best way to find out if this is mine or not?

Should I file my answer to the compliant now? Or wait to see what information I can get from JDB or Attorneys through validation?

I am able to file for arbitration, when is the best time to do this so they just dismiss this small debt if it is mine.

Being that the last name is wrong and considering I'm 75% sure this isn't my debt what would happen (hypothetically) if I ignored this summons? Since the default was found on "me" at my address would I be responsible? How would they try to get repayment/set up garnishes? Through the original debtors SSN?

How would you proceed next?

Any help is very appreciated! THX

[BV80]

The only documents (evidence) included is a generic customer agreement from 2005 with no signatures/ identifiable information and the arbitration agreement as well from that year. My court date isn't until 5/5/11 so I have some time to research this and fight it. My answer doesn't have to be filed until 5/4/11 per Colorado law. (I do not remember opening a Cap one account in 2005 as well)

Just because the the cardmember agreement is dated 2005 doesn't mean that was when you opened the account. The cardmember agreement they should send you would be the agreement that was in effect when the account went into default. Did you default on a card in 2005?

Should I file my answer to the compliant now? Or wait to see what information I can get from JDB or Attorneys through validation?

Answer the Complaint. It should tell you on the summons or the Complaint how long you have to file your Answer. If it doesn't give the Clerk of Court a call and ask. Don't worry about DVing right now. Read your court's Rules of Civil Procedure. If they allow discovery, you can request all the documentation at that time.

If you don't answer the Complaint, they will try to get a default judgment. I don't know the laws in your state regarding judgments, but if your state law allows, they can garnish wages and put a lien on property.

By the way, you need to remove your name from the post. You never know who might be lurking in here.

[Isleepy1]

Just because the the cardmember agreement is dated 2005 doesn't mean that was when you opened the account. The cardmember agreement they should send you would be the agreement that was in effect when the account went into default. Did you default on a card in 2005?

Thanks for the reply, I'm sure I did not default on a capital one card in 2005, and if this is the case the SOL is up anyways and that should be an easy fight. I still don't believe this is my debt to begin with and can not think of a way to find this out besides maybe calling the law firm or waiting until court? I agree DV doesn't seem like it could do much good at this point as I did receive my first correspondence from them in January and I ignored it.. Colorado law says your answer only needs to be filed before your court date I called the county clerk and confirmed this too, so I have until early may if I need the time.

I'm still trying to figure out how to find out this debt is mine without having to go to court and requesting recovery etc... If I have to I will, but it seems that they'd have to provide some type of proof the debt is mine to start a suit right? a statement or even a piece of paper with my name and billing address would do. What can I do to get that? Which leads me back to wanting to know even more; since I'm almost sure this isn't my debt what would happen if I did ignore it? I understand a default judgment is issued, but whom is it issued for? And how do they prove that identity?

PS that is an altered name to show an example not my name, Big Brother is everywhere

Edited March 15, 2011 by Isleepy1

[tempteroffate]

Sadly, in Colorado, at least in Jefferson County, you would have to pay to file your answer.

In Colorado, SOL on credit cards (open accounts) is three years, however, M&J and others collection attorneys will argue it is six years. There is no case law that definitively defines the three year SOL for credit cards. My case was for HSBC not Cap One, but check the cardmember agreement they sent. See if there's a choice of law provision. HSBC had Nevada for choice of law and Nevada clearly defines SOL for credit cards as three years.

I've dealt with M&J in the past. Be meticulous about your record keeping and sending everything certified mail (green card return of course). This saved my bacon with them (got a dismissal with prejudice and they paid my costs to defend myself).

Given you are reasonably certain this isn't your debt at all, I would recommend going ahead and calling M&J to discuss it with them. Explain the common mailing issue you have and get them in some way to verify that you are the person they're looking for. Just be careful while talking with them not to admit to anything that may harm you in court (for example, don't tell them, "if it is my account I want to get it resolved and paid up right away") as this will limit your options in filing your answer if they satisfactorily confirm it is indeed yours.

Once you have enough posts, PM me and I'll share some more insight on M&J with you and what I did/found.

[workingpoor]

PS that is an altered name to show an example not my name, Big Brother is everywhere

Say hi to Lucy for me

[BV80]

Given you are reasonably certain this isn't your debt at all, I would recommend going ahead and calling M&J to discuss it with them. Explain the common mailing issue you have and get them in some way to verify that you are the person they're looking for. Just be careful while talking with them not to admit to anything that may harm you in court (for example, don't tell them, "if it is my account I want to get it resolved and paid up right away") as this will limit your options in filing your answer if they satisfactorily confirm it is indeed yours.

I'd be very careful. Trusting anything a CA or JDB says is dicey. I'd answer the Complaint no matter what. The Plaintiff still has to prove the debt is owed by the Defendant, that the Plaintiff owns the debt, and that it's within the SOL.

[Isleepy1]

I'd be very careful. Trusting anything a CA or JDB says is dicey. I'd answer the Complaint no matter what. The Plaintiff still has to prove the debt is owed by the Defendant, that the Plaintiff owns the debt, and that it's within the SOL.

I Wholeheartedly agree with that that now. I called capital one, gave em my account number.. they couldnt verify ANYTHING because I couldn't confirm any information on the account, they asked, address, last four of social, phone number, nothing I had matched they only gave me a phone number to call to report fraud? and couldn't even give me the name of who the number is for (googled: JDB) So I called M&J and made sure not to disclose any information more then what was needed after I got ahold of "someone knowledgable in this case"

Rep: This is XX this call is being recorded

Me: Hi, I received a summons and I am calling to see if this is actually for me

Rep: whats the last four of your social

Me: 1234

Rep: (sounded kinda stunned) and you live at 123 sesame st"

Me: yes, is this debt mine?

Rep: any information disclosed is used to collect a debt

Me: so are you confirming this debt is mine?

Rep: (long pause) *humms* mmmhmm

Rep: (long pause cause I wasn't sure what that ment) Can I help you?

Me: So this debt is mine then?

Rep: yes

Me: ok thank you

So now I'm really lost.. It seemed like he was shocked that maybe the last four didn't match up, and was really trying to fight saying out loud this was my debt. If he would of had different info would he of been compelled to tell the truth? From my limited knowledge I'm guessing no. Looks like I'm going to be doing a lot of study on consumer law and fighting this everystep. Next step is a answer with affirmative defenses I suppose. If I file for compelling arbitration I'd be admitting the debt is mine correct? The way I read the law here and my arbitrary statement I cannot request arbitration after the discovery process is initiated. Which I really am already anticipating.

Looks like I'll be spending a whole bunch of time with ya'll very soon as until yesterday I knew NOTHING about the legal system... Can't say I'm extremely excited about this whole thing, but it'll be a good learning experience at the very least!

Edited March 15, 2011 by Isleepy1