Found out about suit from 2011...Summary Judgement hearing on Friday

[XediDC]

1. Who is the named plaintiff in the suit?

Equable Ascent Financial, LLC

(merged with Hilco Receivables in 2009)

2. What is the name of the law firm handling the suit?

Jenkins, Wagnon, and Young, P.C.

3. How much are you being sued for?

$3,000

4. Who is the original creditor?

Chase Bank

(was Washington Mutual)

5. How do you know you are being sued?

I received the motion for Summary Judgement in the mail...that Submission Hearing happens on March 16th. I went to the court today , and got copies of all the other documents and actual suit today. (Essentially, while its a long story, I dind't know about this until yesterday, and it started in September. It does appear a Substituted Service was approved, and likely was taped to my gate and lost. The other one in the house that collects the mail misplace a pile of mail, and I was going through it this weekend...lucky me. )

6. How were you served?

I wasn't. Or it was taped to the gate, or?

In the documents, I did find notes about the service...four times they say they spoke to a "female resident". She has no knowledge of this, other than once being asked if I was home by someone she thought was the mailman. It also talks about "no answer at door" and "left at door" a lot, while this is impossible...we have a metal fence around the whole property, so this would have been the gate at the sidewalk. Semantics aside, the service proof is fishy.

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

Maybe, based on the granted motion for Substitute Service.

Maybe not, based on the detail. My fiance is looking for documentation to see if she can prove she was not home at any of the four times listed.

I imagine this isn't worth fighting, but may help with a delay?

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?

Texas, Harris

10. When is the last time you paid on this account?

According to court documents, it is listed as 6/4/2009 (have not verified this)

Petition was filed with the court on 9/19/2011

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

4 years

12. 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).

9/19/11 - Petition

12/22/11 - Motion for Substitute Service Granted

2/17/12 - (filed) Submission Hearing of the Motion for Default Judgement by the Plaintiff is on March 16th

(I didn't include some letters, status conferences, etc)

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?

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?

I didn't...

Submission Hearing of the Motion for Default Judgement by the Plaintiff is on March 16th appears to be the next deadline. Initial response was due back in October, assuming I was served properly...it appears to have drug on from there. Motion of Substituted Service, several court Intent to Dismiss, etc.

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

- Certificate of Last Known Address

- Service Members Civil Relief Act Affidavit (doesn't apply to me)

- Affidavit of Claim

- Affidavit of the Attorney

- Bill of Sale (from Chase Bank, in 2/2010)

- Page showing account number, name, address, balance, etc (balance shown higher than suit amount)

- Merger docs for Ascent and Hilco

- Statement from OC from 1/26/2010 (equals suit amount, one page, not detail)

- Account Agreement / Contract

Interestingly, the account agreement has certain sections X'd out in pen. Looks like a number of different version collected together. (The 2007 arbitration section is X'd, but the 2005 version is not.)

So...I'm a bit behind.

In summary, I'm trying to figure out what to do "right now" since I'm just digesting all of this. What appears to be questionable service is upsetting me, but I get the idea I shouldn't focus on it.

I'm not opposed to just paying a portion of the claim to "make it go away" regardless of whether or not I actually owe it. (I'm still doing some research there to see if this was even a valid debt of mine.) But of course, I'd want it to go away in the best way possible.

I'm thinking at this point a delay (continuance) would be most useful? And, then can I proceed as normal -- both answering, and fighting the summary judgement itself?

Thankfully, the court is a few blocks away from my office.

Thanks you very much for any help! I've been doing some research today, but am posting before I'm "all done" given the timeframe. Many thanks again for any advice on both the immediate issue and....how I should approach going forward.

Edited March 13, 2012 by XediDC

[usagi555]

First, I'd take pictures of the fence and gate showing that it would be difficult for the server to have left it on your doorstep. Make copies for yourself, the judge and the opposition. You may be able to file a motion to have the service quashed or to ask for an extension to answer. No matter what, if you can't swing something by the 16th, SHOW UP WITH THOSE PICTURES! Also, take your fiance in case you need a witness. This may not be the ideal solution, but you have very little time to get things straight and properply follow procedure.

You've been a victim of sewer service my friend. Deal with the hearing for default first, then make them eat it.

That being said, I'm assuming you cannot afford an attorney. With this short amount of time, a reputable consumer attorney would be enormously helpful.

FYI, Equitable Ascent is lower than whale dung on the bottom of the ocean. They probably paid a few pennies on the dollar for the debt, and they may not actually even own it, or there may be another JDB who also believes that they own it who'll be coming for you whether or not you settle.

[Seadragon]

http://www.cclerk.hctx.net/forms/H0160.pdf

How to Answer a Lawsuit for Debt Collection in Texas | eHow.com

That is the best way to do it file the answer and make a motion to vacrte default.

The reason for the motion is non-service. and Now you are going to defend.

Search for the courts form for answer and motion to vacate default or motion for leave to defend.

Check here for the search function for texas answer.

You need to get this in tomorrow.

Edited March 13, 2012 by Seadragon

[usagi555]

That is the best way to do it file the answer and make a motion to vacrte default.

The reason for the motion is non-service. and Now you are going to defend.

Search for the courts form for answer and motion to vacate default or motion for leave to defend.

Check here for the search function for texas answer.

You need to get this in tomorrow.

I'm not sure that the default was granted. If I understand him correctly, that's what the hearing is for.

But yes, an answer would be in order.

[Seadragon]

I added some info to help.

[XediDC]

Thanks!

Yes, the notice I received is "Notice of Submission Hearing on Paintiff's Motion for Default Judgement", scheduled for March 16th. It does say it will be ruled on "without the necessary of an oral hearing, unless one if requested in writing". So, doesn't look like the judgement is in yet...

So, looks like I need to:

1. File the answer tomorrow (already working on that, from all the great resources here! )

2. For the pending Default Judgement...do I want to fight it or delay it? (I'm assuming filing the answer does nothing to help with the Motion for Default Judgement other than show than I'm an involved lay person.) Looks like fight it, both on the service and anything else I find here about fighting them, in general.

3. Either way, I assume I should give notice requesting an oral hearing, so I can make sure all this is discussed?

4. Does all this need to be copied to the plaintiff's law firm too? (Other than the answer.) Still reading on that, but saw some contradiction.

And then of course, show up and...well, do what I'm researching.

Thanks again for the help! Hopefully I can contribute back some, after getting through it.

Edited March 13, 2012 by XediDC

[Seadragon]

here is some gurts from another answer from michigan, you change the statutes to texas statutes.

ANSWER TO COMPLAINT

Defendant respectfully answers the allegations of the complaint. Defendant hereby denies any allegation implicit or explicit unless specifically admitted to. Defendant respectfully requests the court to strike the complaint without leave to amend for failure to comply with MCR 2.113(F) and MCL 600.2145.

Defendant in answer to complaint states:

1. Defendant lacks information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 1. Plaintiff has failed to attach the document or documents to the complaint showing any assignments from any third parties. Defendant is without knowledge of plaintiff's business incorporation status or legitimacy and therefore fully denies the allegation that plaintiff has properly procured the alleged account at issue.

2.Defendant admits in part they are an individual and that they reside at XXXXX X XXXXXX XXX but lacks information or belief in the truth of the implication that the defendant is a proper party to the causes of action of the complaint and therefore denies that part where subject matter jurisdiction is explicitly stated.

3.Defendant admits in part the allegation that defendant is an individual residing in XXXXXXXX County, but lacks information or belief in the truth of the allegation that venue is proper and therefore denies that venue is proper. The alleged Account Originator has publicly stated that terms of its agreements are governed by arbitration clauses, these terms are publicly posted on the Federal Trade Commissions website and defendant further states that the Plaintiff has failed to attach the necessary documents to confer jurisdiction.

4. Objection Hearsay, Defendant requests the court to strike Paragraph 4 of the complaint. Plaintiff has never extended credit to defendant. Without waiving her objections, defendant lacks information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 4. defendant demands strict proof.

5.Objection Hearsay, Defendant requests the court to strike Paragraph 5 of the complaint. Plaintiff has never extended credit to defendant. Without waiving her objection, defendant lacks information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 5.

6.Objection Ambiguous, Hearsay, fails to identify the alleged document or documents and which cause of action it pertains to. Defendant requests for more definite statement. Without waiving her objection, defendant lacks information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 6.

DEFENDANTS ANSWER TO FIRST CAUSE OF ACTION

7. Objection Ambiguous, Hearsay, Irrelevant, fails to state a cause of action. Defendant requests the court to strike paragraph 7 of the complaint . Without waiving her objection, defendant lacks information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 7.

8. Objection Hearsay, Lack of Personal Knowledge. Defendant requests the court to strike Paragraph 8 of the complaint. Without waiving her objection, defendant lacks information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 8.

9. Objection Hearsay, Lack of Personal Knowledge. Defendant requests the court to strike Paragraph 9 of the complaint. Without waiving her objection, defendant lacks information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 9.

10. Objection Hearsay, Lack of Personal Knowledge, Defendant requests the court to strike Paragraph 10 of the complaint . Without waiving her objection, defendant lacks information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 10.

11. Objection Hearsay, Lack of Personal Knowledge, Improper Foundation, Defendant requests the court to strike Paragraph 11 of the complaint . Without waiving her objection, defendant lacks information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 11.

DEFENDANTS ANSWER TO SECOND CAUSE OF ACTION

12. Defendant hereby repeats her objections, motions, and re-answers each allegation contained in paragraphs 1-11 of this Complaint as if fully set forth herein.

13. Objection Hearsay, Lack of Personal Knowledge, Improper Foundation, Defendant requests the court to strike Paragraph 13 of the complaint . Without waiving her objection, defendant lacks information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 13.

14. Objection Hearsay, Lack of Personal Knowledge, Improper Foundation, Defendant requests the court to strike Paragraph 14 of the complaint . Without waiving her objection, defendant lacks information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 14.

DEFENDANTS ANSWER TO THIRD CAUSE OF ACTION

15. Defendant hereby repeats her objections, motions, and re-answers each allegation contained in paragraphs 1-14 of this Complaint as if fully set forth herein.

16. Objection Hearsay, Lack of Personal Knowledge, Improper Foundation, Defendant requests the court to strike Paragraph 16 of the complaint. Without waiving her objection, defendant lacks information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 16.

17. Objection Hearsay, Lack of Personal Knowledge, Ambiguous. Defendant requests the court to strike Paragraph 17 of the complaint. Plaintiff's fail to attach necessary writings to the complaint. Without waiving her objection, defendant lacks information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 17.

18. Objection Hearsay, Lack of Personal Knowledge, Ambiguous. Defendant requests the court to strike Paragraph 18 of the complaint. Plaintiff's fail to attach necessary writings to the complaint. Without waiving her objection, defendant lacks information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 18.

19. Objection Hearsay,Lack of Personal Knowledge, Calls for a Conclusion. Defendant requests the court to strike Paragraph 19 of the complaint. Plaintiff's fail to attach necessary writings to the complaint. Without waiving her objection, defendant lacks information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 19.

20. Objection Hearsay, Lacks Personal Knowledge, Exhibit 1 of the complaint does not comply with MCL 600.2145 as it was made more than 10 days before the complaint. Defendant requests the court to strike exhibit 1 and Paragraph 20 of the complaint as not in conformity of the law. Without waiving her objection, defendant lacks information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 20.

21. Objection Hearsay, Lack of Personal Knowledge, Ambiguous. Defendant requests the court to strike Paragraph 21 of the complaint. Plaintiff's fail to attach necessary writings to the complaint. Without waiving her objection, defendant lacks information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 21.

22. Objection Hearsay, Lack of Personal Knowledge, Ambiguous. Defendant requests the court to strike Paragraph 22 of the complaint. Plaintiff's fail to attach necessary writings to the complaint. Without waiving her objection, defendant lacks information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 22.

23. Objection Hearsay, Lack of Personal Knowledge, Ambiguous, and Calls for a conclusion. Defendant requests the court to strike Paragraph 23 of the complaint. Plaintiff's fail to attach necessary writings to the complaint. Without waiving her objection, defendant lacks information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 23.

[Seadragon]

DEFENDANTS ANSWER TO THE FOURTH CAUSE OF ACTION

24. Defendant hereby repeats her objections, motions, and re-answers each allegation contained in paragraphs 1-23 of this Complaint as if fully set forth herein.

25. Objection Hearsay, Lack of Personal Knowledge, Ambiguous, and Calls for a conclusion. Defendant requests the court to strike Paragraph 25 of the complaint. Plaintiff's fail to attach necessary writings to the complaint. Without waiving her objection, defendant lacks information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 25.

26. Objection Hearsay, Lack of Personal Knowledge, Ambiguous, and Calls for a conclusion. Defendant requests the court to strike Paragraph 26 of the complaint. Plaintiff's fail to attach necessary writings to the complaint. Without waiving her objection, defendant lacks information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 26

DEFENDANTS ANSWER TO CONDITION PRECEDENT

27. Objection Hearsay, Lack of Personal Knowledge, Ambiguous, and Calls for a conclusion. Defendant requests the court to strike Paragraph 27 of the complaint. Plaintiff's fail to attach necessary writings to the complaint. Without waiving her objection, defendant lacks information or belief in the truth of the allegation to admit or deny and therefore denies the allegation in Paragraph 27

AFFIRMATIVE DEFENSES AND COUNTERCLAIMS

1. The plaintiff has failed to state a claim for which relief can be granted. Failing to attach necessary writings to the complaint to support it's allegations has not stated a claim for for which relief can be granted. Plaintiffs failure is unamendable as if plaintiff had the necessary writings they would have attached them. Plaintiffs assertion that the documents are in the possession of the adverse party are not grounded in fact.

2. Plaintiffs lack the legal capacity to sue. Plaintiffs failed to attached required writings specifically bills of sale to the complaint with required signatures to confer standing. The complaint doesn't show with specificity the chain of assignment of the alleged account at issue.

3. Plaintiffs complaint is barred by statute of frauds. Plaintiffs complaint and causes of action are alleged to be in written form, and they have not attached the alleged writings to the face of the complaint. The plaintiffs assertions of the writing is in the possession of the adverse party is misstated as it is supposed to be in the possession of the plaintiff for review prior to initiation of litigation.

_

4. Plaintiffs complaint is barred by statute of limitations. On information and belief, plaintiffs are governed by Delaware choice of law provision.

5. Defendant reserves the right to amend this answer at any time to add affirmative defenses at any time.

WHEREFORE, .premises considered, Defendant prays for Plaintiff to take nothing from the suit, and for the court to grant costs of suit, and any relief the court deems proper.

Hope this helps some

[legaleagle]

I wouldn't use that mess from Michigan, it is completely improper. You do not "Object" to anything in a complaint, you either admit to the truth of the allegation or you deny it. The defenses at the bottom are no good, probably none of them apply to your case. Your first priority is to attend a hearing and get this thing back to square one. They will refile it, so that will just start the clock again. Perhaps you could ask the judge to reset the answer date rather than make the other side serve you again. That will make you look better to the court, more cooperative.

[IndiraMehta]

This is an excellent post!

You MUST bring in your answer with your affirmative defenses. Judges are people, and many are comfortable letting a little bit of pro-se imprecision skirt by if its nothing major.

Once you're in front of the judge, though you may not have filed it officially with the court, the judge WILL ask you something along the lines of "Well, if you HAD known about this case, what would be your answer to the allegations before the court?" This is where you can throw down your Proposed Answer and affirmative defenses. The post above is really a good one.

Good luck!

[XediDC]

Thank ya'll.

[XediDC]

Well, a recommended lawyer picked this up for me. (Side note: when talking to a lawyer on the phone, being able to say "Want me to send you a PDF of the whole case?" is really useful.)

We're launching some products at work this week, so its a push week of work & sleep, and about nothing else. Actually ended up in the ER with chest pain a few days ago, but thankfully was just stress.

So, I'm normally 100% the DIY type (even for things I shouldn't)...but I bowed out on this, at least for the immediate issue. I'll follow up with how things end up.

Thanks again!