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FIA Lawsuit - Need Help ASAP


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Hoping you guys can help out ASAP. I am helping a friend answer a suit and she needs to answer it right away. I wish she would have come to me sooner but I hurt my knee a couple weeks ago and am awaiting surgery and she didn't want to bother me with it so she hasn't done anything yet because she didn't know what to do.

1. Who is the named plaintiff in the suit?

FIA Card Services

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Local lawfirm

3. How much are you being sued for?

$1,000

4. Who is the original creditor? (if not the Plaintiff)

Plantiff

5. How do you know you are being sued? (You were served, right?)

Received summons

6. How were you served? (Mail, In person, Notice on door)

Mail & taped to door

7. Was the service legal as required by your state?

Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None

9. What state and county do you live in?

MI, Wayne

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

She has no recollection of the account. We found a BoA account matching the amount but different account # on her CR but she still doesn't remember it. Shows last paid 1/09. CO was 7/09 but does not show sold or transferred and still lists the balance so it appears they still own it.

11. What is the SOL on the debt? To find out:

6 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Need to file answer now. Received in mail 2/10. Door notice left 2/13.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

14. 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.

No

15. 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?

21 days by personal service or 28 days by mail so not sure which they are using so she maybe already past due to get it in

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

None. No attachments

As per the summons it appears they are suing based on account stated. These are the 7 items she needs to address in her response.

1. Jurisdiction and venue are proper in this court.

2. Defendent entered into a credit card agreement with plaintiff for a credit card account with account # ----.

3. Upon information and belief defendent has possession of the agreement upon which this claim is based.

4. Defendent agreed to the terms and conditions of the credit card agreement by making purchases or taking cash advances on the credit card account.

5. Plaintiff has fully complied with the terms and conditions of the credit card agreement.

6. Defendent has defaulted under the terms and conditions of the credit card agreement by failing to pay as promised.

7. There is presently due and owing the sum of $1,000.

Please help with responses and what she should list as affirmative defenses. She has no recollection at this time of the account. Also, is BoA one where she might want to request card arbitration possibly?

Thanks for any help you can provide.

Edited by barblong
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Unfortunately her computer died awhile back and she doesn't have the money to replace it so she usually goes online at the local library which she does when necessary but is not comfortable with doing with this particular thing as she said there is a short time limit to use a computer and she said they are a bunch of nosey bodies there.

Anyway, I told her I would help as she needs to get this in ASAP or she will have a judgment which is why I am asking for some assistance as quickly as possible. She understands things as we go thru them such as denial and asking for strict proof but like most people she just wants to make sure she answers in an intelligent way so she isn't screwed right off the bat.

Hopefully someone can offer some suggested responses for the seven items she needs to answer. I am not sure how to address requesting card arbitration exactly but have seen people on here say it could be the route to go if the amount owed is low and depending on the CC company so if that is the route to go what would she need to do in that case.

Edited by barblong
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Look into if your state accepts foreign choice of law.

FIA/BofA uses DE law, and DE law is 3 years. From first delinquency.

If she last paid in Jan of 09 then first deliquency would be Feb of 09.

As one defense I would claim time barred based on SOL of the

Governing Law of the cardmember agreement.

This would be based on DE 3 year which would be Feb 2012.

I also would used the election of private contractual arbitration as provided for in the card member agreement.

What date was on the summons?

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I looked up foreign choice of law last year for another reason and spent a looong time looking and could only find instances where Michigan applied it to contract law, nothing with credit cards so I don't believe it can be used here.

The summons date is funny in that the issue date and expiration date were written over. However the original dates appear to be that the summons was issued 1/30 with an expiration of 3/30 as opposed to the dates written over showing they had to serve her by May so either way they got it to her in time.

So is arbitration something she would include in her answer or wait to address at her first court date?

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Okay, my friend really needs to submit an answer tomorrow if possible since she doesn't know if it is already past due (the court would not confirm if she had 21 or 28 days since she was served two different ways).

This is what I have come up with thus far but really not sure how she should reply to #5 as it is regarding the Plaintiff, so she would have no knowledge if they complied or not so how should she state that.

1. Jurisdiction and venue are proper in this court.

Answer: Agree

2. Defendent entered into a credit card agreement with plaintiff for a credit card account with account # ----.

Answer: I can neither admit nor deny this request as I have no memory concerning it and no records of it and the information known to me is insufficient to enable me to admit or deny.

3. Upon information and belief defendent has possession of the agreement upon which this claim is based.

Answer: Deny

4. Defendent agreed to the terms and conditions of the credit card agreement by making purchases or taking cash advances on the credit card account.

Answer: I can neither admit nor deny this request as I have no memory concerning it and no records of it and the information known to me is insufficient to enable me to admit or deny.

5. Plaintiff has fully complied with the terms and conditions of the credit card agreement.

Answer: ???

6. Defendent has defaulted under the terms and conditions of the credit card agreement by failing to pay as promised.

Answer: I can neither admit nor deny this request as I have no memory concerning it and no records of it and the information known to me is insufficient to enable me to admit or deny.

7. There is presently due and owing the sum of $1,000.

Answer: Defendant objects to this request as stating a conclusion of the law.

Please let me know what you think of the answers and what to put for #5.

Thanks everyone for the help.

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]I looked up foreign choice of law last year for another reason and spent a looong time looking and could only find instances where Michigan applied it to contract law' date=' nothing with credit cards so I don't believe it can be used here.[/b']

The summons date is funny in that the issue date and expiration date were written over. However the original dates appear to be that the summons was issued 1/30 with an expiration of 3/30 as opposed to the dates written over showing they had to serve her by May so either way they got it to her in time.

So is arbitration something she would include in her answer or wait to address at her first court date?

There is no such field of law called "credit card law". There is "Contract Law" and this covers ALL contracts. A credit card agreement is a contract, and as such, contract law does apply in a civil courtroom.

First things first: Finish up your answer.

I'm not going to write it for you, but I would recommend you not admit to anything. Neither admit nor deny. Don't admit knowledge of anything, you are not obligated to do so, you have a 5th amendment right against self-incrimination. Search the forum for "answer critique" and read what comes up. Make certain your answer is solid. Less is best. Do not clutter your answer with stories or relate the circumstances of getting/using/failing to pay the card. Just a straight forward "neither admit nor deny" or similar is more than OK. The more words you use in court, the more words the other side can use against you.

Immediately research and file motions related to issues of standing:

If the Delaware statute of limitations is really 3 years, and you think that 3 years has already passed, you can file a Motion to Dismiss on grounds that the statute has already expired. Out of statute = they cannot sue over the debt.

Check venue. Can you *really* be sued in your jurisdiction by this creditor? If they are filed in an inappropriate court, you can file a Motion to Dismiss for Improper Venue.

Move on to discovery

What kinds of "paperwork" has the person suing you filed with the court? Is it an affidavit? FIA has a history of falsifying these things. You can bring up these past issues at trial with a "Motion for Judicial Notice".

FIA is the servicer for Bank of America. Is there a bill of sale? If so, does it mention this specific account number BY NAME? Are any of the documents "notarized"? FIA also has a history of falsifying notary stamps/signatures.

Are there any violations of the FDCPA or FCRA in this whole process? No? Yes? If yes, counterclaim.

It may be a wee late to request arbitration. However, if there was an opportunity to do so, I would have recommended you do so.

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Well as far as I can tell Michigan has only used foreign choice of law for a business contract, I could not find one instance where they allowed it in a credit card lawsuit and have searched on here and have seen that others have also indicated that it does not appear Michigan will allow it.

As I said before the original summons had a date of 1/12 and date of last payment on her card according to her CR was 1/09 so they would still have got in just under the 3 years for delaware.

As far as venue she is being sued in the city she has lived in her entire life so it should be correct.

As far as paperwork filed, they attached nothing nor do they indicate anything was supposed to be attached which is why I believe their lawsuit is based on Account Stated. No Bill of Sale or anything else. Nothing on the summons even indicates BoA or any type of date account was supposedly used. We pulled up her CR and matched the amount so this is how we know it is BoA and when they show it was last paid on. She still has no recollection of it whatsoever and can't find any paperwork for a card with either the account # on the CR or the Summons (as they are different).

She has had no contact with BoA, a debt collector or lawyer regarding the matter via phone or mail. Not sure there could be any violations since she hasn't been contacted by anyone before this.

So should we change #3 to not admitting or denying like the others? Also, still not sure how to reply to #5 and if #7's response is okay.

Sorry, I just want to help her as she gave up more than 2 years of her life to take care of her mother when she got sick and when she died she has since only found a part time job and is at risk of losing her house due to back taxes and I know she is already stressed and now this came up so I'm trying to give her some much needed support and help.

Edited by barblong
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I have adjusted the answers hopefully to the better but really could use some feedback.

1. Jurisdiction and venue are proper in this court.

Admitted upon information and belief.

2. Defendent entered into a credit card agreement with plaintiff for a credit card account with account # ----.

Plaintiff has failed to provide documentation to support the allegation. Defendant has insufficient information to admit or deny and, therefore, denies.

3. Upon information and belief defendent has possession of the agreement upon which this claim is based.

The Defendant denies this allegation as being true. The Defendant is not in possession of the alleged account agreement and the alleged account agreement is not a matter of public record.

4. Defendent agreed to the terms and conditions of the credit card agreement by making purchases or taking cash advances on the credit card account.

Defendant has insufficient information to admit or deny and, therefore, denies.

5. Plaintiff has fully complied with the terms and conditions of the credit card agreement.

??? Regarding Plaintiff, not Defendant so not sure how to answer

6. Defendent has defaulted under the terms and conditions of the credit card agreement by failing to pay as promised.

Defendant has insufficient information to admit or deny and, therefore, denies.

7. There is presently due and owing the sum of $1,000.

??? Weirdly worded as not specifically stating Defendant owes it so not sure what to put

I am concerned #1 ties her to court on this. I'm still thinking pulling the card Arbitration ripcord might be her best bet. As I believe she is well within SOL for Michigan and even if our court entertained using DE SOL I still think they got it in just in time to beat that clock so I don't see any legit defenses to put down as this is an OC. Would she need to answer #1 differently if she wanted to use card Arbitration and also would she need to file a MTC card arbitration?

Edited by barblong
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Plaintiff has fully complied with the terms and conditions of the credit card agreement.

Defendant denies the allegation set forth in this paragraph. Defendant is not in possession of the alleged agreement, and therefore cannot analyze the "terms and conditions" referenced, nor does Defendant have any way to determine compliance on anyone's part.

Venue is no big deal. I am pretty sure you can still invoke ARB, failing to respond to the summons will result in a judgment.

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Thanks for your help with #5 legaleagle. Do you or anyone else have any thoughts on #7. It is weird how it doesn't reference the defendant. Should she just put once again that she has insufficient information to admit or deny.

Do you have to put defenses after responding to their items. My understanding is anything she puts down it is back on her to prove. If she doesn't put any defenses is she screwed?

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