FIA Card Services Summons -How best to Respond?

[cleanup-time]

First – THANK YOU for all the information! Second – this will be a long post and I’m interested in all advice on how best to proceed.

Background: have been victim of identity theft back in the 1980s before it became so widespread. I have also been through financial ups and downs. I received a summons from FIA Card Services (supposedly). The information is vague – I honestly do not know if this really is my debt. If it is it would have occurred in the 80s possibly early 90s when I lived in California. I now live in Utah. I KNOW I have not made any payment to anyone regarding this in at least 15 years.

The Summons:

• XXXX Law Associates claims they are suing for their client, FIA.
  
• Plaintiff’s address is listed on the last page as 1427 Roswell Rd., Marietta, GA – which is the address for Frederick Hanna + Associates
  
• They wrote across the top that it is a “ten-day summons please return immediately upon serving.”
  
• In the portion below where it names the plaintiff + defendant it mostly reads:
  
  You are hereby summoned and required to file with the clerk of the above entitled court xxxxxxx and answer to the Plaintiff’s complaint and to serve upon, or mail to Plaintiff’s attorney a copy of said answer within TWENTY(20) days after the service of this summons. xxxxxxxxxxxx Said Complaint will be on file with the Court within in ten (10) days after services of this summons. Should the complaint not be filed within ten days after service of this summons, you need not answer the Complaint. You may contact the Clerk of Court at least thirteen (13) days after the service of this summons to determine if the Complaint has been filed with the court.
  
  

  
  

• Dated this 16th day of December 2011
  
• Top right corner they wrote in that it was served on 12-6-2011.
  
• It was actually 01-06-2012.
  
• There was no evidence attached.
  

Initial questions:

Are these date discrepancies a problem?

Which is correct time to file an answer in 10 days or 20 days?

If it is 20 days should I wait and call the clerk in 13 days to see if they filed the Complaint?

[inthesticks]

You need to read your state's rules of civil procedure, but from what you have posted the summons says you have 20 days to file the answer. The 10 days is the amount of time that the Plaintiff has to file the complaint after service. Personally I would check with the court NOW to make sure they haven't already filed and trying to sneak in a default judgment. Then I would get my answer ready to file as soon as they DO file.

The dates, I don't know. If the summons is dated 12/16/2011 kind of hard for them to have served it on 12/6. That's another reason I would check with the court immediately to make sure they haven't already filed.

This looks like a classic case of being able to use SOL as an affirmative defense.

[cleanup-time]

Thank you -- from everything I've read that is what it should be: case filed within 10 days of process or it's dismissed. I will call the court first thing Monday to see what I can find out.

Meanwhile I'm continuing to learn what I can here and will post again in this thread my answers to the summons for feedback! What I'm not clear on are the affirmative responses, referencing SOL and what all can be accomplished with the Answers. For example, would it be appropriate to request a dismissal?

[legaleagle]

You should wait until you see the complaint. I doubt anyone would sue for a debt from the 1980s. FIA is Bank of America. Ever have a credit card with them?

[nobk4me]

Also, Bank of America swallowed up a number of other banks thru the years, such as MBNA and Fleet.

If the debt is out of statute, I would file a motion to dismiss.

Also, contact a consumer lawyer. Filing suit on a debt when the SOL has expired is a FDCPA violation.

Edited January 7, 2012 by nobk4me

[cleanup-time]

You should wait until you see the complaint. I doubt anyone would sue for a debt from the 1980s. FIA is Bank of America. Ever have a credit card with them?

Do you mean the officially filed complaint? Will that be different than what's been outlined in the Summons? Have not had a BoA credit card for some years -- and no where near that kind of limit!

[cleanup-time]

.....

If the debt is out of statute, I would file a motion to dismiss.

Also, contact a consumer lawyer. Filing suit on a debt when the SOL has expired is a FDCPA violation.

Is it appropriate to include a motion to dismiss with the Answer?

If I understand correctly in your Affirmative Defense you can claim the SOL has expired but you can NOT claim an FDCPA violation....but is this a problem using SOL when no dates have been mentioned AND you are claiming no knowledge of the debt?

[cleanup-time]

Should I send a Debt Validation letter to the attorneys? I've read that once you're sued no need to bother and the opposite to go ahead and do it anyways.

[legaleagle]

DV is too late once you've been sued. A summons just tells you that you're being sued. The complaint is the document that sets forth the cause of action of the plaintiff and identifies the parties. Until you see that, you have no clue as to what they are alleging. The complaint will have the plaintiff's name and will identify the account being sued upon. It should give some facts such as when the account went into default, etc. The complaint must inform you as to what is being alleged. If not, you ask for a more definite statement / request to revise. Just post it here when you get it. You can go to the courthouse and ask the clerk if it's been filed yet. If so, get a copy. You can't answer something you don't have. A complaint should be attached to the summons; in most states, that is common procedure.

Utah State Courts - Utah State Court Rules

Here is a link to your rules. This will explain proper procedure.

[cleanup-time]

Yes, the complaint was with the Summons. Based on what I've been reading, researching, I've drafted responses:

DEFENDANT’S ANSWER TO COMPLAINT

1. Plaintiff is a foreign corporation bringing action to collect a debt on their own behalf against a resident of Utah.

Denied. Defendant has no knowledge of Plaintiff. No evidence has been presented to support Plaintiff's allegation. Defendant demands strict proof.

2. Defendant, XXXXX, is an individual residing in the State of Utah

Admit.

3. Plaintiff and Defendant entered into a contract by virtue of Defendant’s application for credit, pursuant to which Plaintiff agreed to extend credit to the Defendant through the use of a credit card under account number ***********1234

Denied. The Defendant has insufficient information to admit or deny, and therefore must respectfully deny. Defendant demands strict proof.

4. Defendant agreed to the terms and condition of the Agreement, by signing the credit application or by accepting and using the credit card.

Denied. The Defendant has insufficient information to admit or deny, and therefore must respectfully deny. Defendant demands strict proof.

5. Defendant has defaulted on said Agreement in that Defendant has failed and continues to fail to pay amounts due an owing for purchases under the credit line Agreement

Denied. This request calls for admission of matter defendant has denied and thus it is improper.

6. The last known balance of Defendant’s account was the principle sum of $XXXX.XX

Denied. The Defendant has insufficient information to admit or deny, and therefore must respectfully deny. Defendant demands strict proof.

7. As a result of Defendant’s default, Plaintiff has seen damages in the principle sum of $XXXX.XX

The Defendant has insufficient information to admit or deny, and therefore must respectfully deny. Defendant demands strict proof.

FURTHERMORE, Defendant DENIES every other allegation not previously admitted, denied or controverted.

Plaintiff prays for relief as is hereinafter set forth.

1. For Judgement in the principle sum of $XXXX.XX

2. For Plaintiff’s cost incurred herein.

3. For such other and further relief as the Court deems just an equitable in the premises.

AS AND FOR AFFIRMATIVE DEFENSES

1. Plaintiff, as the defendant is informed and believes, lacks the legal standing to bring and maintain this action. (not sure about this one)

2. The action is barred by the Statute of Limitations. Defendant alleges that this action is time-barred under § 78B-2-307 of the laws of Utah.

3. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff. (not sure about this one)

4. The plaintiff has not proven the debt is valid or the amount of the debt is accurate. The plaintiff must prove that the principal, interest, collection costs, and attorneys fees are all correct, agreed to in your contract, and lawfully charged. Defendant also insists that the plaintiff come up with the contract, account statements and purchase receipts to prove the amount of the debt.

5. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account).

6. Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

Defendant prays this case be dismissed with prejudice along with any further relief the court deems just and proper. Further the defendant sayeth not.

Ok that's it so far -- advice welcome...thank you in advance!!

[inthesticks]

4. The plaintiff has not proven the debt is valid or the amount of the debt is accurate. The plaintiff must prove that the principal, interest, collection costs, and attorneys fees are all correct, agreed to in your contract, and lawfully charged. Defendant also insists that the plaintiff come up with the contract, account statements and purchase receipts to prove the amount of the debt.

I'm not sure about this one being an affirmative defense. An affirmative defense is supposed to be something that, even if everything the plaintiff alleges is true, negates their claim. You have already denied the allegations. This is actually your defense against the allegations in the complaint.

[Coltfan1972]

I'm not sure about this one being an affirmative defense.

Yeah, it's not an affirmative defense, it's what the plaintiff has to prove to win. It's also a request for documents that should be part of discovery, not part of the answer, and even if it was an affirmative defense, not requested in the body of the affirmative defense.

[cleanup-time]

I'm not sure about this one being an affirmative defense. An affirmative defense is supposed to be something that, even if everything the plaintiff alleges is true, negates their claim. You have already denied the allegations. This is actually your defense against the allegations in the complaint.

That makes sense - thanks.

[cleanup-time]

Yeah, it's not an affirmative defense, it's what the plaintiff has to prove to win. It's also a request for documents that should be part of discovery, not part of the answer, and even if it was an affirmative defense, not requested in the body of the affirmative defense.

Thanks for the confirmation.

[legaleagle]

Lack of privity never works, throw that one out, 5 and 6 are unnecessary. They also are not defenses, but you listed them as such. 4 should go as previously detailed by other posters. 1 and 2 are where you'll get the most traction.

Denied. The Defendant has insufficient information to admit or deny, and therefore must respectfully deny. Defendant demands strict proof.

This sounds like something somebody concocted for the internet. If you read it carefully, you'll see that it is contradictory. First you say you don't have enough information to admit or deny, then you deny.

Me, I'd answer this way:

1. Plaintiff is a foreign corporation bringing action to collect a debt on their own behalf against a resident of Utah.

The paragraph contains no allegation, therefore defendant does not respond.

2. Defendant, XXXXX, is an individual residing in the State of Utah

The paragraph contains no allegation, although defendant is a Utah resident.

3. Plaintiff and Defendant entered into a contract by virtue of Defendant’s application for credit, pursuant to which Plaintiff agreed to extend credit to the Defendant through the use of a credit card under account number ***********1234

Defendant denies the allegation set forth in paragraph three. Defendant avers that at no time has he / she entered into any contract with the Plaintiff. Defendant will be requesting this "contract" between parties in discovery.

4. Defendant agreed to the terms and condition of the Agreement, by signing the credit application or by accepting and using the credit card.

Defendant agreed to nothing. The "agreement" referenced was not appended, nor was the "signed credit application," which defendant will be requesting in discovery.

5. Defendant has defaulted on said Agreement in that Defendant has failed and continues to fail to pay amounts due an owing for purchases under the credit line Agreement

Defendant denies executing or defaulting on any agreement with plaintiff.

6. The last known balance of Defendant’s account was the principle sum of $XXXX.XX

Denied to the extent that no admissible evidence establishing the account has been provided, therefore any "balance" is moot and thus denied.

7. As a result of Defendant’s default, Plaintiff has seen damages in the principle sum of $XXXX.XX

Denied. See response to 6.

-----------------------------------------------------------------------

This is interesting, this goes back to that signed credit card application they mentioned. Make them produce this stuff, otherwise the card was unsolicited, which violates Regulation Z section 226.12 as well as this statute.

§ 2542. Prohibition upon distribution.

No person, or any representative thereof, shall distribute any credit card to any person, association, corporation, partnership, or any representative thereof, within this State unless such credit card shall have been requested or unless the issuer shall have given at least 14 days notice of intention to issue such card. The notice shall also include a conspicuous legend that the prospective holder has the right to refuse the credit card and shall be accompanied by a postage prepaid, preaddressed envelope or card upon which the prospective holder may indicate such refusal. Use of the credit card by the intended recipient shall constitute acceptance, but there shall be no liability by the intended recipient prior to the use of same. This subchapter shall not apply to the issuance of renewal or substitute cards.

Also, I like this DE law:

Chapter 23 Interest § 2301. Legal rate; loans insured by Federal Housing Administration.

(a) Any lender may charge and collect from a borrower interest at any rate agreed upon in writing not in excess of 5% over the Federal Reserve discount rate including any surcharge thereon, and judgments entered after May 13, 1980, shall bear interest at the rate in the contract sued upon. Where there is no expressed contract rate, the legal rate of interest shall be 5% over the Federal Reserve discount rate including any surcharge as of the time from which interest is due; provided, that where the time from which interest is due predates April 18, 1980, the legal rate shall remain as it was at such time.

[cleanup-time]

Great -- thank you ...

Is that a good move to bring up discovery in the Answer? (Guess that would let them know I'm serious.)

Should I wait until Day 13, call the Court to see if they have filed and then proceed?

I think that the attorneys wrote "answer in 10 days" on the top so they could determine whether they need to bother filing. Just a guess. (and of course I'd LOVE this have an EASY happy ending!)

There may be a more helpful place to post the links I've amassed but I'll put some of them here for now.

Well I have not posted enough for live links...if you copy, paste and add 'www' they should work:

Utah: How to Answer a Complaint or Petition

utcourts.gov/howto/answer/

There are also Word versions of the documents:

Utah: Answer Checklist Form (PDF)

utcourts.gov/howto/answer/docs/00_Checklist.pdf

Utah: Answer Form

utcourts.gov/howto/answer/docs/01_Answer.pdf

[Patz]

........

Also, I like this DE law:

Chapter 23 Interest § 2301. Legal rate; loans insured by Federal Housing Administration.

(a) Any lender may charge and collect from a borrower interest at any rate agreed upon in writing not in excess of 5% over the Federal Reserve discount rate including any surcharge thereon, and judgments entered after May 13, 1980, shall bear interest at the rate in the contract sued upon. Where there is no expressed contract rate, the legal rate of interest shall be 5% over the Federal Reserve discount rate including any surcharge as of the time from which interest is due; provided, that where the time from which interest is due predates April 18, 1980, the legal rate shall remain as it was at such time.

Isn't this section specifically referring only to mortgage loans insured via the FHA mortgage insurance program?

[legaleagle]

I don't think so, but I couldn't swear to it, I only posted the first paragraph. Here's the link to the entire chapter. Like most statutes, It is a little vague. They threw in that semicolon; that can mean a lot. There is nothing that follws that would say otherwise, maybe we have a Delaware expert who could clarify this? My take is that if it doesn't say it, it doesn't exist.

CHAPTER 23. INTEREST

[cleanup-time]

I called the Court today and they said that nothing had been filed. To use the date I was actually served to start counting days -- not the date they wrote. Yes, I do have twenty days to answer (not 10 like it said at the top) and I could either type up my answers or use their form.

Any thoughts on whether it's better to wait and see if they actually file the complaint or should I just go ahead and get my Answer filed?

I really appreciate all the help I've received!

[nascar]

Denied. The Defendant has insufficient information to admit or deny, and therefore must respectfully deny. Defendant demands strict proof.

This sounds like something somebody concocted for the internet. If you read it carefully, you'll see that it is contradictory. First you say you don't have enough information to admit or deny, then you deny.

It's not internet lore. It's Rule 8(:

Defenses; form of denials. A party shall state in simple, short and plain terms any defenses to each claim asserted and shall admit or deny the statements in the claim. A party without knowledge or information sufficient to form a belief about the truth of a statement shall so state, and this has the effect of a denial.

The part about demanding strict proof is not necessary, though.

[nascar]

Any thoughts on whether it's better to wait and see if they actually file the complaint or should I just go ahead and get my Answer filed?

Utah is a "serve and file" state. See Rule 3 of your Rules of Civil Procedure.

The plaintiff must file the complaint within 10 days of service.

[cleanup-time]

Getting a little antsy waiting for the 10 days to pass .... is there a possibility that the Complaint that they file will be different from what I was given?

Edited January 13, 2012 by cleanup-time

[cleanup-time]

They have filed and I have a case number.

I'm going to revise my answer based on what everyone has said here. I would like to get more feedback on that when I do it. Should I post the revisions in this thread or start a new one?

Thank you.

[legaleagle]

Stick to the same thread. Post the complaint.

[cleanup-time]

Ok -- hopefully I'll get that up by tomorrow, Saturday at the latest. I can't post links yet but response #10 in this thread is the complaint with my first draft answers.

FWIW, the Clerk said they did not file anything other than what I received.