ProSe12 Posted February 14, 2012 Report Share Posted February 14, 2012 (edited) Hello all.1. Who is the named plaintiff in the suit?Discover Bank2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)M&K3. How much are you being sued for?<$10k4. Who is the original creditor? (if not the Plaintiff)Plantiff5. How do you know you are being sued? (You were served, right?)Served by Publication6. How were you served? (Mail, In person, Notice on door)Mail7. Was the service legal as required by your state? No8. What was your correspondence (if any) with the people suing you before you think you were being sued?None9. What state and county do you live in?WI10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)1-2 Yrs ago if its legitimate11. What is the SOL on the debt? To find out: 6 years12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).Answer Filed, Trial set, that is all13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)No14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.No15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt LawsuitsWas given 8 days. Now 2 months til trial.16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.Absolutely nothing.17. Read this article: Sued by a Debt Collector - Learn How to Fight Debt LawsuitsOK, will do. That's what I'm here for. Edited June 14, 2012 by ProSe12 status update Link to comment Share on other sites More sharing options...
ProSe12 Posted February 15, 2012 Author Report Share Posted February 15, 2012 Ok, now I do have a question. Are electronic return receipts sufficient? This is significantly cheaper than the old fashion green cards. I tried the search feature but was unable to find anything. Link to comment Share on other sites More sharing options...
KentWA Posted February 15, 2012 Report Share Posted February 15, 2012 This depends on what you are wanting to accomplish with the record. Example: You send DV to Dirtbag JDB and they continue to attempt to collect without validating. You end up in court and sue over failure to DV.If you have electronic confirmation of delivery it just says it was delivered. They claim they never got it and you have no proof it was actually delivered to them and not someplace else.If you sent it CMMR, they claim they never got it. You whip out green card signed by their office manager, you then have irrefutable evidence they got it. Link to comment Share on other sites More sharing options...
ProSe12 Posted February 15, 2012 Author Report Share Posted February 15, 2012 I appreciate the reply, but perhaps I wasn't clear what I meant by CMERRR.When you send a letter usps certified mail electronic return receipt requested, you still get a document stating where the letter was addressed to, that it was delivered, and a signature. The difference is that the post office delivers this information to you via email. It's $1.20 cheaper. Considering I don't even have the money to mail letters right now, this is something I need to use if it meets legal requirements. Link to comment Share on other sites More sharing options...
legaleagle Posted February 15, 2012 Report Share Posted February 15, 2012 I do have a concern over the way you filled out the form questions. You indicate suit by DFS as the plaintiff. Who is DFS? Never heard that one before. Link to comment Share on other sites More sharing options...
ProSe12 Posted February 15, 2012 Author Report Share Posted February 15, 2012 Discover Financial ServicesSorry for not being clear. Link to comment Share on other sites More sharing options...
legaleagle Posted February 15, 2012 Report Share Posted February 15, 2012 Well, there isn't much we can do for you until they actually sue you. Best thing you can do now is study the rules of civil procedure for your state, they will be online. The statute of limitations is not an issue here. This is the original creditor, so they may have better records. They didn't sell your account, so obviously they think you have something worth going after. A car, house, job, money in the bank, who knows. They probably pulled your credit report to fish for something they can grab. At this point, anything you own should disappear in anticipation of getting a judgment against you. That's up to you. Jerk them around for a while with a debt validation request while you magically become insolvent and collection proof. No law against selling your stuff. When they do sue, come back here and post the complaint without actual names, change the amount somewhat. Link to comment Share on other sites More sharing options...
lawyer1943 Posted March 5, 2012 Report Share Posted March 5, 2012 The most important thing to do is to keep on top of your matter. I practice in California. In California a summons and complaint is usually served personally on you. If that happens you only have thirty days to answer the complaint. If it is served on someone other than you where you live, then it is called a sub-service and you tack 10 days to the thirty days. The most important thing you should do is be aggressive. My approach in California is to generally file a demurrer if they allege a breach of contract and do not state the terms of the contract or attach a copy of the contract. At the same time I serve them with a Bill of Particulars (if they allege a common count), a Request for Admissions, Special Interrogatories and a Document Request. That way they know from the get go that they are in for a fight. After I do this, it is not uncommon for the debt collection company to dismiss the complaint without prejudice thinking I will just go away. However, when that happens, I then file a Memorandum of Costs to recover the cost of filing the Demurrer. I have had real good luck following this pattern. Just stay on top of your case. Link to comment Share on other sites More sharing options...
whattodocacourt Posted March 5, 2012 Report Share Posted March 5, 2012 The most important thing to do is to keep on top of your matter. I practice in California. In California a summons and complaint is usually served personally on you. If that happens you only have thirty days to answer the complaint. If it is served on someone other than you where you live, then it is called a sub-service and you tack 10 days to the thirty days. The most important thing you should do is be aggressive. My approach in California is to generally file a demurrer if they allege a breach of contract and do not state the terms of the contract or attach a copy of the contract. At the same time I serve them with a Bill of Particulars (if they allege a common count), a Request for Admissions, Special Interrogatories and a Document Request. That way they know from the get go that they are in for a fight. After I do this, it is not uncommon for the debt collection company to dismiss the complaint without prejudice thinking I will just go away. However, when that happens, I then file a Memorandum of Costs to recover the cost of filing the Demurrer. I have had real good luck following this pattern. Just stay on top of your case.Oooh! I like your style! welcome to the board Lawyer1943! Link to comment Share on other sites More sharing options...
legaleagle Posted March 5, 2012 Report Share Posted March 5, 2012 Yes, welcome indeed. We need more California experts here, seems like half the state is being sued. The rules are a bit complicated with all the forms. Link to comment Share on other sites More sharing options...
ProSe12 Posted June 7, 2012 Author Report Share Posted June 7, 2012 (edited) Well here it is ... I was not served in person, but rather by newspaper publishing. The complaint was mailed to me with only a few days left to respond.Complaint follows:...removed Edited June 15, 2012 by ProSe12 Link to comment Share on other sites More sharing options...
ProSe12 Posted June 7, 2012 Author Report Share Posted June 7, 2012 (edited) . Edited June 7, 2012 by ProSe12 Link to comment Share on other sites More sharing options...
legaleagle Posted June 7, 2012 Report Share Posted June 7, 2012 Motion for an extension of time to answer, these are usually automatically granted. That gives you 30 days or so to formulate a defense. Link to comment Share on other sites More sharing options...
BTO429 Posted June 8, 2012 Report Share Posted June 8, 2012 I would file a motion for lack of service...they can not publish in the paper until they show that they exhausted all means to serve you personally.Newspaper publishing is the last means in the chain to serve someone,,A motion to show cause as to why they served you in this manner could prove that, and I would argue this is why they served you by punishment, that they tried to slip a law suit passed you and get a fast default by publishing in the paper.I would argue that they intentionally did it this way. Link to comment Share on other sites More sharing options...
ProSe12 Posted June 9, 2012 Author Report Share Posted June 9, 2012 (edited) Local procedure, has not been 60 days. It doesn't specifically state that service by publication can not be made before 60 days, but it seems to be implied?Edit: Additionally, the publication dates was only one week before the return date when state law specifices 14 days are required.For money and replevin actions the summons must be served at least 14 days before the return date and not more than 60 days to obtain personal service. If personal service cannot be obtained within 60 days, the case can be adjourned for publication and that publication service must be within 90 days of filing. For eviction actions the summons must be served at least 5 days before the hearing and not more than 60 days from the return date.I'll get drafts of my motions up here as soon as possible (tonight or tomorrow, whenever I can get back to some place with an internet connection.) Edited June 9, 2012 by ProSe12 Link to comment Share on other sites More sharing options...
ProSe12 Posted June 12, 2012 Author Report Share Posted June 12, 2012 (edited) Well, I attempted to motion for an extension of time to answer but the clerk refused and said they do not give extensions of time and that if I wanted one I'd have to serve it upon the plantiff today (hearing is tomorrow) and that it would be up to them. (LoL?)I guess all I can do is due my best to draft an answer just in case and take this up with the judge tomorrow. I mean... really? Service by publication 5 business days before the hearing?edit: Thoughts on invoking arbitration? For reasons I'd rather not disclose, except perhaps to senior members of the forum, I'm a bit hesitant to do that. Edited June 12, 2012 by ProSe12 Link to comment Share on other sites More sharing options...
ProSe12 Posted June 14, 2012 Author Report Share Posted June 14, 2012 (edited) Well that was like a bad comedy...Guess who called the case? Yup, the same clerk who refused to accept my motion. I did not want to lose any rights under 425.109(1)(h) or 425.109(2) so I filed the answer I last minute drafted. Hopefully I didn't screw it up too badly. (Answer below.)I breifly discussed settlement numbers with the Attorney and he's goiing to get back to me. I am willing to settle if it's something I can actually afford, but given that I'm pretty broke I will not get my hopes up.I'm now more inclined towards arbitration since it seems as though my local court doesn't have a problem with denying me due process.========(Required Header Info)ANSWER... removed Edited June 15, 2012 by ProSe12 Link to comment Share on other sites More sharing options...
legaleagle Posted June 14, 2012 Report Share Posted June 14, 2012 Yeah, you messed it up. All that an answer requires is an admission or denial of the allegations. You've added in 5 totally invalid special defenses (the answer is not a defense) and an improper discovery request. Now that you've tipped them off that you don't know procedure, they may pursue you harder. When they run up against an experienced litigator, they tend to give up or make a better deal. Link to comment Share on other sites More sharing options...
ProSe12 Posted June 15, 2012 Author Report Share Posted June 15, 2012 (edited) By discovery request I assume you are referring to the portion end of the answer ...Defendant requests that said Complaint be dismissed, unless Plaintiff is able to submit to the court and the Defendant accurate copies of the written evidence, if any, of the Defendant's alleged obligations as stated in this Complaint. Pursuant to Wisconsin Statute section 425.109(1)(h), Wisconsin Statue section 425.109 (2) and the Newgard vs. Bank of America 2007 WI App 161, 303 Wis. 2d 466, 735 N.W.2d 578, 07-0082 holding, Defendant demands the following documentation evidencing the alleged consumer credit claim, with originals available for inspection in this court, before any judgement can be rendered for the Plaintiff: (list)425.109(1)(h) states that An accurate copy of the writings, if any, evidencing the transaction, except that with respect to claims arising under open-end credit plans, a statement that the creditor will submit accurate copies of the writings evidencing the customer's obligation to the court and the customer upon receipt of the customer's written request therefor on or before the return date or the date on which the customer's answer is due. So what is the correct method of requesting this information? Should I not request it? Offtopic, but the wording of the statute itself seems to call for an admission. Anyway...I now have to decide if I want to move for dismissal based on service and "start over" (insomuch as that is possible), amend my answers or MTC.So it would seem the information at creditinfocenter.com/legal/affirmative-defenses.shtml is to be disregarded? Or have I misapplied it? I'm just trying to understand so that (1) I don't repeat my error and (2) I can try to figure out what to read and what to ignore in the future, but this doesn't seem to be an easy task. Edited June 15, 2012 by ProSe12 Link to comment Share on other sites More sharing options...
legaleagle Posted June 15, 2012 Report Share Posted June 15, 2012 No, it was that laundry list of documents etc that you asked for. You removed the answer, so I can't quote it for you. Link to comment Share on other sites More sharing options...
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