jasen

questions on tactic in answering initial summons

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My SO just received a summons from CACH. There are only three complaints:

1. you had an account with Citibank

2. you owe $x to us

3. the venue is proper

My gut is to deny the first two and accept the third, just to make them work for it. However, she's not going to be able to go in there and argue against this, and we can't afford a lawyer right now. She knows it's hers and will have a hard time denying it.

Her situation is also not so great; going through a divorce, been a stay-at-home mom for several years, very little income. The amount they want is as much as she made in income the entire last year. Her ex is the one who used this card and still makes a decent income, yet he's not named on the suit. I'm thinking she needs to bring these facts to the attention of their attorney, to let them know they're trying to squeeze blood from a rock by suing her instead of the other responsible party, but not sure it would do any good.

And even if/when the divorce is final and he's made to be responsible for half or more of this, he's still not going to voluntarily pay any of it and she'll still have a judgment or agreement with them.

Am I missing an option here?

If she admits all three complaints is that pretty much just handing the plaintiff the judgment?

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Is that all the complaint says? If not, you need to type it here word for word. Remove names and change the amount somewhat. Most cases are done outside court, not too many appearances are required. She'll have plenty of time to learn. Cach is a junk debt buyer trying to collect on one of the most vulnerable OCs around. There are things you can do which will drive them so insane they will probably give up, Cach will NEVER spend the money it will cost them to litigate this if you follow a few simple steps. Guaranteed, they won't even understand the reasons for your discovery or the statutes you will use to defeat them. One wrong move on their part and you have a massive counterclaim. She can start by answering the complaint and immeditely filing a motion to implead the husband as a third party defendant. That means that she says he is responsible in whole or in part for the debt and thus the lawsuit. She must have evidence that he used the account and to what extent, and what for.

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The complaints are:

1. Plaintiff owns and is the holder of an account due and owing by the Defendant, and is the assignee of Citibank.

2. Defendant is indebted to the Plaintiff in the amount of $xxx; plus accrued interest of $xxx.

3. Venus is proper with this court based on Defendant residing in xxxx.

I'm answering as:

1. Denied, Defendant does not have the information necessary to admit or deny this complaint.

2. Denied, Defendant does not have information necessary to determine Plaintiff owns said debt.

3. Admit.

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Even though it probably is, why would admit the venue is proper. Make them show it is proper.

Your/her defense will be standing. She does not have to deny she owes the money. She can just deny she owes it to this JDB. In fact, it would be legit. Does she know for sure they are the legal owners of the debt? Of course not, and just because they say so is not good enough.

I would skip the sad story to the atty. They won't care and it's irrelevant. Also, the responsible party is the party that is the primary on the account and opened the account. Finally, a divorce decree won't help her at all. Her only choice would be to pay the judgment and then sue her ex for 1/2. The creditors use divorce decrees for bird cage liner.

She can win this pretty easy. It just depends if she wants to put in the time and effort. Most don't, and most end up settling or with a judgement. That is just the way it is and why the JDB could care less about her situation. A judgement follows you around pretty much forever, just gaining interest. Just because she can't pay today or even in three years, means nothing. They simply don't care.

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That's the worst complaint I've ever seen. It doesn't even identify an account number. If you want to torture a JDB, this is the place to be. How much is the debt? If it is 3-5,000, arbitration per the cardholder agreement may be the way to go. They won't pay for it, not in their business model. If it is less, the tactic we use is to make the JDB lawyers spend money to the point where it costs them more than they can get. Same applies if it is a large amount.

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Even though it probably is, why would admit the venue is proper. Make them show it is proper.

Your/her defense will be standing. She does not have to deny she owes the money. She can just deny she owes it to this JDB. In fact, it would be legit. Does she know for sure they are the legal owners of the debt? Of course not, and just because they say so is not good enough.

Exactly what I was trying to do. We deny #1 as we don't know who they are, and they haven't proven they own anything, and we deny #2 as #1 has to be proven first.

I would skip the sad story to the atty. They won't care and it's irrelevant. Also, the responsible party is the party that is the primary on the account and opened the account. Finally, a divorce decree won't help her at all. Her only choice would be to pay the judgment and then sue her ex for 1/2. The creditors use divorce decrees for bird cage liner.

Yes, I'm aware of the lack of substance to a divorce decree (that's why I didn't bring it up). I was just thinking that a JDB who really wants to get paid might take interest knowing there's another responsible party with more money they might concentrate on. Maybe not.

She can win this pretty easy. It just depends if she wants to put in the time and effort. Most don't, and most end up settling or with a judgement.

We're willing to put in the work, but it really doesn't seem like a pretty easy one to me. Thanks for your input. I'll keep studying, this is just the first step.

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That's the worst complaint I've ever seen. It doesn't even identify an account number. If you want to torture a JDB, this is the place to be. How much is the debt? If it is 3-5,000, arbitration per the cardholder agreement may be the way to go. They won't pay for it, not in their business model. If it is less, the tactic we use is to make the JDB lawyers spend money to the point where it costs them more than they can get. Same applies if it is a large amount.

It's in the $4k range.

If a JDB has it, can you still invoke the arbitration?

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We're willing to put in the work, but it really doesn't seem like a pretty easy one to me. Thanks for your input. I'll keep studying, this is just the first step.

If you're in Illinois, then you should read "Defense of Collection Cases" by Daniel A. Edelman. It is based on Illinois law and and available for free in PDF format. Just do a google search for the title.

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The JDB assumes the terms and conditions of the cardmember agreement. If there is an arbitration clause, then they are bound by it.

You really only want to use arbitration if they specify JAMS as one of the forums. JAMS is the most advantageous to consumers.

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Update:

Answer was filed.

Plaintiff filed motion for default anyway, trying to claim defendant did not appear. (With the motion they also included an affidavit from a CACH employee who claimed to have "knowledge" of the account, and badly photocopied supposed "bill of sale". Still no account numbers on any documents.)

Motion denied.

Good so far I think. Still no court date has been set. Is that what is going to happen next? What possible motions should we have prepared and ready to use at this point? Discovery?

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Based on what you said previously, you might want to serve a third party complaint against the ex for the whole thing, if you can document that he made all the purchases. If she applied for the card but he was the only one who used it, this is about the only way to get him on the hook. Actually, there is a second method, joinder of an interested party. This should be in your court rules. either method gets him into the suit.

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