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Summons response - HELP!


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Ok I've been scanning the 'net for info and guidance on responding to a summons of suit from a credit card and collection agency - one of which is A$$et... the other a firm representing FIA. There's SO much info out there, a lot of it contradictory, and in reading this forum have decided this will be my most reliable source for CORRECT info.

Attempts were made to make an agreement with this OC to make lower payments because of a lack of income, but they would not agree and then began the process of exorbitant fees and interest charges so payments ceased since I'd rather keep the lights on. A debt collector has taken it over. It doesn't appear it was bought by them, though, since FIA is named as the 1st plaintiff.

When does the discovery get filed? Only if there is a response to my answer?

I was planning on sending a validation letter, but I'm hearing differing opinions on whether that is a moot point since I've already got the summons. Should I still send out a validation letter?

First of all, I'm in CT. I have until January 24 for one return date, and February 3 for the other. I'm a bit confused about the special defenses on the answer form. I understand I'm supposed to respond to EACH paragraph by number. I'm disagreeing with everything, of course.

I'm confused about the counts. The first paragraph in Count II is "Plaintiff hereby incorporates paragraphs 1-2 of Count I as though set forth in full herein." What the HECK does that mean??? Do I respond to that as a paragraph? Also, they skipped a number from that first paragraph in Count II where it goes from 3 to 5. Do I refer to 4 being missed? I'll spell out what I have here... it seems kind of vague and no other papers were attached besides the summons and the complaint. Does Statute of Fraud hold for credit card accounts? I have seen differing opinions on that as well.

Here is the complaint from FIA with my planned defenses:

Count I (Default on Credit Account)

1. On or before (date), the defendant became indebted to the plaintiff in the sum of $$$ for charges and/or cash advances incurred on the defendant's credit account.

Defendant avers that at no time has entered into any credit account with the plaintiff. Defendant will be requesting validation of account between parties in discovery.

2. Despite demand, the balance of $$$ remains wholly unpaid and the defendant failed and continues to fail to make payment.

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

Count II (Account Stated)

3. Plaint hereby incorporates paragraphs 1-2 of Count I as though set forth in full herein.

Do I answer this?

5. The defendant had a credit account with the plaintiff, and in connection with that account, plaintiff mailed, delivered, sent or otherwise transmitted periodic account statements to the defendant setting forth all of the charges and credits applicable to the account, as well as the balance due.

Defendant denies executing or defaulting on any credit account with plaintiff. Validation of Debt has been requested as of 1/16/12, and discovery will be filed as well.

6. Upon information and belief, the defendant received and held these statements for an unreasonable time with no known protest or known notice of defects to the plaintiff as to the charges and amounts due.

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

7. The final statement transmitted to the defendant, indicating a balance due and owing, was accepted and held by the defendant for an unreasonable time without protest or notice of defect.

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

8. The plaintiff seeks damages for the account stated balance minus any credit(s) on the account occurring after the last statement was transmitted.

The plaintiff has failed to provide any contract or agreement bearing the signature of the defendant, nor any itemized statements or billing of said debts.

Now, for Affirmative Defenses:

Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

Can I defend no Fiduciary Duty for a credit account?

Is there anything else I should do or change?

The other one I have is for A$$et... I was planning on using "Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages." for that one.

How am I doing?

Thanks so much for any advice and help you can offer!

P.S.

Both summons were NOT served in person. They left one on the back porch, and the other stuck in the front door.

Edited by tattoued
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How am I doing?

You're all over the place. Just so you know, there is a knowledgeable poster from your state, LeagalEagle, that can most likely give you more details that are state specific.

So generally speaking-

First no debt validation. That ship sailed and would not matter anyway on the suit with the original creditor (FIA), since a original creditor is not bound by the FDCPA. Even so, useless once suit is filed. You have the ultimate DV, discovery.

I would deny without the commentary about what you will be requesting.

Also you don't object to the lawsuit. You're confusing interrogatories or request for admissions with answering the lawsuit. You can object and state a reason why if they ask you a question. At this stage they are just making allegations (contained in the lawsuit complaint).

You don't object as improper because you have denied. You do that in discovery. Of course you (well you should) will be denying what is in the lawsuit. So, it's not improper, it's just their allegations at this time.

I'd can the affirmative defenses (special) of failure to state a claim. They clearly stated a claim, unless it is required by law they include something with the complaint they did not include.

Statute of frauds won't apply in this case, as most affirmative (special) defenses will not.

You are dealing with an original creditor in your first suit. They are beatable, but much more difficult.

Discovery will start, generally speaking, right after you're served. I would expect to see it coming your way and then then a quick move for summary judgement.

The other case you describe is with a junk debt buyer. You handle the same way, but you can win that case in the discovery stage. Generally speaking, you're going to need some legal loopholes, good discovery demands, hopefully some lazy work by the other side (likely), and a very aggressive defense that turns into an aggressive offense to defeat the original creditor.

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:cry:Coltfan, how do I get a hold of LegalEagle? I don't have enough posts to PM him. I really need assistance on this. I'm soooo confused. I thought I had it all figured out and was doing pretty good. I feel really incapable at the moment. Can you help, please, and ask if he could read my post? I don't know any other way to contact him (or her). Thank you so much for your info.

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:!:I just pulled credit reports, and both of the accounts I received suits on have been CHARGED OFF. Does this change anything? Does it give me more ammo? Is there something else I should add to my answer?

Also, I had asked a few questions in the first couple of paragraphs of my original post... can someone please answer those? I sure do appreciate any help you can offer!

Thanks!

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Charged off doesn't mean sold off. The credit report would have to show they were sold off to this new company that it is suing you. If the summons states your old creditor is suing you then that is probably who is suing you using a debt collection attorney. I don't know anything about CT law but I would go to your superior court site if that is where the summons was filed and would look up the form to answer the law suit with. I would see if there is a place to answer with a general denial. I would also google 'how to answer a summons in CT' and see what you come up with. Legaleagle is usually here and he can help more. I would get that answer filed asap by 1 of the 2 methods I showed here.

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I have the answer form pretty much ready - my original post showed the complaint in its entirety with my planned responses in blue italics - all denials, of course.

I was planning on affirmative defense(s), but wasn't sure which one, if any, would hold the most water. I also wasn't sure about when discovery is filed, and if it should be mentioned in the answer. I guess I'm already gathering that the validation request is a moot point at this time, so no sense in bothering, although I sure would be interested to see the paperwork and accounting on all this.

I would LOVE to have LegalEagle take a look at my answer and give me an opinion as well as CT statutes (which I've already looked up and have downloaded the CT Practice Book, but can't really decipher the legalese in most of it), but I cannot PM him/her since I don't have enough posts.

If anyone can tell me how I'm supposed to respond to the first paragraph of Count II, please do so! Thanks!

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Also, I thought the CA or whoever was suing was supposed to attach some kind of statement of account or at least the account number to the complaint, no?

Can someone please tell me what I'm supposed to answer to the first paragraph of Count II?

Do does discovery get filed if there is a trial date set or when? I can't seem to find that info anywhere...

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First of all, you do not bother with debt validation after you've been sued. Before you send in your answer, we need more information. What is your basis for stating that you never opened an account with the plaintiff? FIA card services is Bank of America.

"Plaintiff hereby incorporates paragraphs 1-2 of Count I as though set forth in full herein."

This is legal doubletalk that means "I don't feel like typing all that crap again, so just pretend it's all in this paragraph too." Disregard it, don't respond.

How much is FIA suing for? When did the account go delinquent? The statute of limitations is 3 years. Arbitration may be the best tactic if it is a small amount. Give me the venue (court location) and the law firm suing. This is an account stated case, which is harder to win. The other one is much easier, junk debt buyers are easier to beat. I'm not crazy about your chances against BofA, their complaint is simple and to the point. It will depend on what documentation they can provide to back up their case.

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Still doing research... I downloaded what is supposed to be a complete listing of licensed consumer collection agencies from the CT Dept of Banking site, and the two that I've received summons from are NOT on this list. Does that mean they have no right to attempt collection from me? I know I might be grasping at straws here, but I want to be sure I'm doing this right.

Also, I read on another site from an attorney in CT that the CA is supposed to send a letter prior to the summons at some point offering debt validation in 30 days, and if they have not done so, it is a violation that carries a $1000 fine... am I misunderstanding that?

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I did supply the info you requested. Maybe it's just taking a few minutes to post, I'm not sure. It does say right on the top of the summons "This communication is from a debt collector". That's not the same as a CA?

Edit: I did forget to answer when the debt was delinquent - it says on the credit report past due as of Aug 2009, and charged off as of 8/2009. Not sure which date you needed.

Another note: What about a sworn denial? I saw something about this out there on the 'net. From what I understand, it need to by typed, signed, notarized and filed with the clerk of the court, and a copy sent to the collection lawyer. It needs to say "I deny that 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." According to the info, it say that this denial eliminates the sworn affidavit of account that the collection atty has. It says that when a sworn denial is filed, the debt collection attorney cannot rely upon a sworn affidavit of account but must instead produce a live witness to testify about the debt.

Is any of that true?

Edited by tattoued
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