Received Civil Summons - Discover and TrakAmerica

[grandgnu]

My wife received a civil summons for a debt of close to $10,000 from an old Discover card.

I've done some research online but figured I'd inquire here as well. The plaintiff on the paperwork is listed as:

Discover Bank

6500 New Albany Road

New Albany OH 43054

The cause type code is C40

The additional paperwork contains no return date or docket number (but does have labels for these sections in the top left) The return date is filled out on the summons, however

The plaintiff on these pages is listed as Discover Bank and the signature at the bottom states:

DISCOVER BANK

by its attorney

Julie B Solomon

Solomon and Solomon, P.C.

5 Columbia Circle

Albany, NY 12203

Juris No 421261

(518) 456-7200

We called Discover and inquired about the account and were told it was charged off on Dec 31, 2010 and was with Trak America.

I believe this means the debt is no longer with Discover and is with a 3rd party debt collection agency? If that is indeed the case, would their use of Discover Bank in the paperwork amount to fraud?

My wife tried calling the court listed on the documents but was given the run-around by the clerks (put on hold for 15 minutes, told they didn't think someone would deliver fake documents, etc)

With no docket # we aren't sure how to verify if there is a case pending against her or how best to proceed. Would love some advice!

[BV80]

Check Discover's entry on your credit report. If they've sold the account, somewhere in the entry you'll see "sold" or "transferred". If it doesn't say that, then Discover still owns the account.

When the rep for Discover told you the account was with TrakAmerica, they could have meant that TrakAmerica had merely been contracted to collect for them.

[grandgnu]

Check Discover's entry on your credit report. If they've sold the account, somewhere in the entry you'll see "sold" or "transferred". If it doesn't say that, then Discover still owns the account.

When the rep for Discover told you the account was with TrakAmerica, they could have meant that TrakAmerica had merely been contracted to collect for them.

Checked Experian and Transunion and they state the following respectively:

Status: Account charged off. $x,xxx written off. $x,xxx past due as of Mar 2012.

Pay Status: >Charged Off<

Remarks: >UNPAID BALANCE CHARGED OFF<

[BV80]

If the entry doesn't say sold or transferred anywhere, it's only been charged off. It appears Discover is the Plaintiff as stated on the Complaint.

Check the Rules of Civil Procedure in your court regarding the commencement of a lawsuit. In some states, the Complaint can be served to the Defendant before it's been filed with the court.

If you have trouble finding that information, call the clerk again and ask.

Edited March 26, 2012 by BV80

[grandgnu]

Thank you for the response, gave you +rep.

I'll check with our court clerk and see how to proceed, although any advice would be appreciated. My wife has been out of work for a few years (except for a short stint part-time maybe a year ago) and we don't own a home and the car isn't in her name (and Discover is only going after her on this)

Any advice on her chances of convincing them to not waste their time since she has no income or assets?

[BV80]

Thank you for the response, gave you +rep.

I'll check with our court clerk and see how to proceed, although any advice would be appreciated. My wife has been out of work for a few years (except for a short stint part-time maybe a year ago) and we don't own a home and the car isn't in her name (and Discover is only going after her on this)

Any advice on her chances of convincing them to not waste their time since she has no income or assets?

I'm not sure if Discover or their attorneys would be that sympathetic. I don't know the laws in your state. In my state, judgments are subject to the bankruptcy laws. In other words, whatever property is exempt from bankruptcy is exempt from a judgment.

In the meantime, you need to find out if you have to go ahead and file an Answer to the Complaint.

If I'm not mistaken, LegalEagle is from your state. Hopefully, he'll take notice of your posts and will be able to provide some answers.

Thank you for the +rep. I wish I had more to offer, though.

[grandgnu]

I checked a page for CT and it appears my wife would be "judgement proof" as she is not working and does not have any assets.

It states in summary:

Even if a creditor sues you and wins, he can only collect from you if

•You take home more than $330 a week, or

•You have a house or other property or assets, or

•You have money in a bank account that is not protected.

My wife is the only one named in this paperwork, the Discover account was not tied to my name or social. Because we are married, can they go after my bank account in this instance?

edit: Would it help when we reply to this summons to mention she is "judgement proof" based on her situation, so that maybe they will just not bother wasting time in court?

Edited March 27, 2012 by grandgnu

[grandgnu]

Can my wife be judgement proof based on the above and since we were in MA when the account was opened and now reside in CT, I believe any money in a bank account with only my name on it is safe from her creditors?

[legaleagle]

As for your case, go here and do a search by your name:

Civil/Family Case Look-up

Sometimes it takes a while for them to post a docket number. Discover is the plaintiff, Julie Solomon is the attorney. Not a very good one, either. They can only pursue the person they sue, CT is not a community property state. Forget mentioning this in your answer. Judgments last 25 years here, they will wait until she owns something they can go after, like a paycheck. What court district is this? Your wife needs to file an appearance with the court if she intends to defend herself. You cannot represent her or prepare her work. The form is on line at the site above. Fail to do so and there will be a default judgment against her.

Edited March 27, 2012 by legaleagle

[grandgnu]

As for your case, go here and do a search by your name:

Sometimes it takes a while for them to post a docket number. Discover is the plaintiff, Julie Solomon is the attorney. Not a very good one, either. They can only pursue the person they sue, CT is not a community property state. Forget mentioning this in your answer. Judgments last 25 years here, they will wait until she owns something they can go after, like a paycheck. What court district is this? Your wife needs to file an appearance with the court if she intends to defend herself. You cannot represent her or prepare her work. The form is on line at the site above. Fail to do so and there will be a default judgment against her.

Thanks for the link, don't see it listed yet but will keep searching.

The information on the summons states:

Superior Court

Judicial District

And it was to be filed at 95 Washington St, Hartford.

I was not aware I cannot represent her. She is definitely not capable of representing herself in this matter, I was hoping I could assist. So our only option is to contact an attorney.

Any guesstimates on the cost we might incur and if there are any affordable options out there you could link us to?

Also, thanks so much for swinging by, I was going to pm you, but I'm too new to the forum and it wouldn't let me.

[grandgnu]

Consulted with a Bankruptcy Attorney who advised my wife that she was judgement proof but could also file Chapter 7 for $1700 lawyers fee plus $306 state filing fee.

She sent in her answer to the Plaintiff's attorney and received a voicemail today from their attorney saying they had some questions about the answer (she had written that she wanted them to provide proof of the debt via the contract, receipts, etc.) and mentioned she was judgement proof and also able to file Chapter 7 if they proceeded with the case.

Should my wife respond to their attorney or ignore her and just wait to see what their next move is?

[legaleagle]

Proceed with the case as usual, bankruptcy means nothing unless you actually file. BK is federal, I don't know why they would tell you filing fees are state. As for the voice mail, you don't really need to respond to this. I don't know what she sent as an answer, but it sounds improper. The opposition must follow the rules of procedure if they don't like the answer. Best you post it here so we can see what she did.

[grandgnu]

here it is:

Defendant’s Answer to Complaint

Allegation 1: Admit

Allegation 2: Admit

Allegation 3: Admit

Allegation 4: Admit in part. I did have an account with Discover. Deny in part, I have been presented no evidence that the account I had with Discover is the same account as the debt alleged in this complaint.

Allegation 5: Plaintiff has provided no documentation to support the allegation. Defendant does not recall the alleged debt and has insufficient information to admit or deny. Therefore, Defendant respectfully denies.

FURTHERMORE, Defendant DENIES every other allegation not previously admitted, denied or controverted.

AS AND FOR AFFIRMATIVE DEFENSES:

1. The plaintiff has not proven the debt is valid or the amount of the debt is accurate. The plaintiff must prove that the principal, interest, collection costs, and attorney fees are all correct, agreed to by both parties in contract, and lawfully charged. Defendant also insists that the plaintiff come up with the contract, account statements and purchase receipts to prove the amount of the debt.

2. Summons and Complaint did not include an Affidavit of Debt. Defendant demands Plaintiff produce this so Defendant may contest any misrepresentation, falsehoods, errors or omissions.

3. Defendant has been advised by a Bankruptcy Attorney that she is Judgment Proof, having no income or income below $100 per week, owning no home or vehicle and having no collectable assets or ability to make payment should any judgment be awarded plaintiff. Defendant and spouse are also eligible for Chapter 7 Bankruptcy and will consider filing if Plaintiff proceeds with this lawsuit

4. Defendant reserves the right to add affirmative defenses as they become known through discovery

WHEREFORE, the defendant asks the Court for judgment:

a. Dismissing the complaint herein with prejudice

Respectfully Submitted

[legaleagle]

What did you admit to? You never posted the complaint, just the answers, you probably lost already. Your defenses do not apply, they are invalid. Most of them are discovery issues. They could care less if you say you are judgment proof. Some day you may not be, and they'll be there to collect.

[grandgnu]

COMPLAINT

1. Plaintiff is A FOREIGN STATE BANK

2. Defendant(s) reside at XXXXXXX

3. The the Defendant(s) was extended credit.

4. Defendant(s) failed to make payments for the credit extended. The total balance due is XXXX

5. That heretofore, Plaintiff rendered to Defendan(s) monthly, full and true accounts of the indebtedness owing by the Defendant(s) as a result of the credit extended,, in an amount as hereinabove set forth which account statements were delivered to the Defendant(s) resulting in an account stated for the amount set forth above.

[usagi555]

Discover gave you a hint that they are letting the CA and the law firm they sent the account to control the litigation. It would be worth checking into CT case law to see if this is allowable, because here (and in WI,) that would be unauthorized practice of law, hands down. Discover is supposedly a tough cookie in the courtroom, and I would want every hammer I could find.

[BV80]

COMPLAINT

1. Plaintiff is A FOREIGN STATE BANK

2. Defendant(s) reside at XXXXXXX

3. The the Defendant(s) was extended credit.

4. Defendant(s) failed to make payments for the credit extended. The total balance due is XXXX

5. That heretofore, Plaintiff rendered to Defendan(s) monthly, full and true accounts of the indebtedness owing by the Defendant(s) as a result of the credit extended,, in an amount as hereinabove set forth which account statements were delivered to the Defendant(s) resulting in an account stated for the amount set forth above.

That's all that's stated in the Complaint? They didn't even state an account number. How do you know what account you're admitting to?

What evidence did they send with the Complaint, if any?

In response to Usagi's post:

Sec. 36a-805. (Formerly Sec. 42-131). Prohibited practices. Exception. (a) No consumer collection agency shall: (1) Furnish legal advice or perform legal services or represent that it is competent to do so, or institute judicial proceedings on behalf of others; (2) communicate with consumer debtors or property tax debtors in the name of an attorney or upon the stationery of an attorney, or prepare any forms or instruments which only attorneys are authorized to prepare;

Edited April 10, 2012 by BV80

[grandgnu]

That's all that's stated in the Complaint? They didn't even state an account number. How do you know what account you're admitting to?

What evidence did they send with the Complaint, if any?

The rest of their paperwork has a Solomon File # in the top right corner and then below that is what we believe to be the account # (it's X'd out except for the last four digits)

Additional pages state the following:

Wherefore, Plaintiff prays for the following relief:

Damages in the sum of XXXX plus costs and post judgement interest at the maximum rate allowed.

STATEMENT OF AMOUNT IN DEMAND

This amount, legal interest or property in demand is TWO THOUSAND FIVE HUNDRED DOLLARS or more but is less than FIFTEEN THOUSAND DOLLARS, exclusive of interest and costs.

CERTIFICATION AS TO PLAINTIFF'S FINANCIAL RESPONSIBILITY

I hereby certify that I have personal knowledge that the Plaintiff has the financial responsibilty that I deem sufficient to cover any costs that may later be taxed to the Plaintiff if it loses at trail, pursuant to Connecticut Practice Book Sec 8.4

Pages are then signed:

DISCOVER BANK

by its Attorney,

Julie B Solomon

etc

And also have the following writeup to the left of the signature line:

This is an attempt to collect a debt. Any information obtained will be used for that purpose. This communication is from a debt collector.

[legaleagle]

Discover gave you a hint that they are letting the CA and the law firm they sent the account to control the litigation. It would be worth checking into CT case law to see if this is allowable, because here (and in WI,) that would be unauthorized practice of law, hands down. Discover is supposedly a tough cookie in the courtroom, and I would want every hammer I could find.

Don't waste your time on this. Julie Solomon is the attorney of record. She is licensed in CT. Take my word for it.

[usagi555]

Discover gave you a hint that they are letting the CA and the law firm they sent the account to control the litigation. It would be worth checking into CT case law to see if this is allowable, because here (and in WI,) that would be unauthorized practice of law, hands down. Discover is supposedly a tough cookie in the courtroom, and I would want every hammer I could find.

Don't waste your time on this. Julie Solomon is the attorney of record. She is licensed in CT. Take my word for it.

I'm not saying that it's the same in CT, but here, if I had evidence that the attorney or the collection agency was controlling the litigation, it wouldn't matter what licenses they had, it would still be unauthorized practice of law. If Discover sent a case to a CA, that CA sent the case to a local attorney who was licensed to practice law here, the CA has engaged in unauthorized practice of law. After that, if the attorney makes the decision to file the lawsuit without input from Discover, or even makes the decision to dismiss without input from Discover, they can still probably be nailed for unauthorized practice of law.

[BV80]

The rest of their paperwork has a Solomon File # in the top right corner and then below that is what we believe to be the account # (it's X'd out except for the last four digits)

Additional pages state the following:

Wherefore, Plaintiff prays for the following relief:

Damages in the sum of XXXX plus costs and post judgement interest at the maximum rate allowed.

STATEMENT OF AMOUNT IN DEMAND

This amount, legal interest or property in demand is TWO THOUSAND FIVE HUNDRED DOLLARS or more but is less than FIFTEEN THOUSAND DOLLARS, exclusive of interest and costs.

CERTIFICATION AS TO PLAINTIFF'S FINANCIAL RESPONSIBILITY

I hereby certify that I have personal knowledge that the Plaintiff has the financial responsibilty that I deem sufficient to cover any costs that may later be taxed to the Plaintiff if it loses at trail, pursuant to Connecticut Practice Book Sec 8.4

Pages are then signed:

DISCOVER BANK

by its Attorney,

Julie B Solomon

etc

And also have the following writeup to the left of the signature line:

This is an attempt to collect a debt. Any information obtained will be used for that purpose. This communication is from a debt collector.

It appears they didn't include the account on the Complaint. You don't know for sure that your wife is being sued for an account that was hers, or not.

If it were me, I'd deny numbers 3 - 5.

1. Admitted upon information and belief.

2. Admit

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

4. Same as 3.

I don't believe your affirmative defenses are considered valid defenses.

5. Same as 3.

[grandgnu]

Alright, since my wife already sent in her Answer to the Plaintiff's attorney and to the CT court she believes the next step is Discovery?

She found this and wasn't sure if she should follow this template or if she should do anything different?

debtcollectorphonenumber.com/discovery.asp

(unable to post links until I have 20 posts and only at 10)

[legaleagle]

Don't do anything. The plaintiff is the aggressor. You will probably receive discovery from them, do nothing until this happens.

[grandgnu]

Don't do anything. The plaintiff is the aggressor. You will probably receive discovery from them, do nothing until this happens.

You said "probably". Is there a specific timeline we should be prepared for to expect this?

What should we do if they don't request Discovery?

[legaleagle]

What should we do if they don't request Discovery?

Throw a party. Don't worry, they'll send you something once they sober up. We'll show you what to do. Julie Solomon has no clue as to CT law. As soon as they encounter resisitance, they hand off the case to Howard Lee Schiff in Hartford. Schiff is even more incompetent than Solomon. If you really like this stuff, you can have a lot of fun here. Imagine walking into court and chopping up a lawyer so badly that he grabs his stuff and storms out of the courtroom without even looking at you. Follow your case on line, these lawyers have a nasty habit of waiting a week before sending you a copy of something they filed with the court. Check it daily. Motions can take 120 days to be ruled on. Time is on your side. Keep studying.