Respond to summons to late? what now

[gearhead]

I received a summons from cap1 on January 17 2012 for 1500.00 from MESSERLI & KRAMER PA , and responded by sending them a discovery letter but not a reply to the summons after getting some advice from a friend, this is before I found this site so do not beat me up to bad over this.

After reading some posts I believe that this might have been bad advise, my question is what to do, the 20 day response time is long gone but they have not filed a default as of yet, they have responded to my dv letter with two online print-outs of billings that where sent to me long after account was closed, account was opened in 2003 and closed 2009 and the two print outs where from 2010 and 2011 and with a standard customer cap1 agreement in print that is so small you can not read it just 3 pages of unreadable print.

Any advise on what to do next would be appreciated, hopefully I have dropped the ball before the game even started.

Thank you.

Edited March 30, 2012 by gearhead

[usagi555]

I received a summons from cap1 on January 17 2012 for 1500.00 and responded by sending them a discovery letter but not a reply to the summons after getting some advice from a friend, this is before I found this site so do not beat me up to bad over this.

After reading some posts I believe that this might have been bad advise, my question is what to do, the 20 day response time is long gone but they have not filed a default as of yet, they have responded to my dv letter with two online print-outs of billings that where sent to me long after account was closed, account was opened in 2003 and closed 2009 and the two print outs where from 2010 and 2011 and with a standard customer cap1 agreement in print that is so small you can not read it just 3 pages of unreadable print.

Any advise on what to do next would be appreciated hopefully I have dropped the ball before the game even started.

I'd file a response unless MN rules say you can't at this point. Go through your rules.

[Coltfan1972]

I'd file an answer also. However, I'd argue you doing discovery was obviously showing you were answering their claim. I don't know if that would fly, doubt it, but I bet it would be enough to grant leave to file the answer.

Just depends on how the rules read and how much of a stickler the judge is for procedure. The fact they have not filed for default is indication they are not prejudiced by your late filing of an answer.

[Guest usctrojanalum]

file answer anyway.

[gearhead]

I have included an attachment with the summons if you could take a look at it and suggest the best way to answer the charges, my first summons and hopefully the last.

Thank you.

[Coltfan1972]

If allowed, which probably is, a general denial. About as simple of a complaint as you can get. I'd say move for arbitration and watch this disappear, but you are not is a position to challenge the jurisdiction of the court since any answer would be late.

[gearhead]

how would I move for arbitration, I need a dummies guide to arbitration reading up on some threads but confusing a lot of conflicting threads.

Somebody please post a step by step guide for this procedure for the newbies.

[Coltfan1972]

Linda7 is the resident expert, but I don't think I'd be challenging the jurisdiction of the court when you want the court to bend the rules and allow your late answer to the lawsuit.

[gearhead]

How would it be challenging the jurisdiction if they have not filed anything with the courts yet, asking because I do not know and what should I do if that is the case ?

[Coltfan1972]

When you move for arbitration you are telling the court you are electing contractural arbitration and therefore the court no longer has any jurisdiction over the case.

The other side won't want arbitration because it will basically mean you win. So I would expect them to move that you filed too late. Just my opinion, nothing means I'm right, but I don't think you should ask the court to bend the rules at the same time you are asking the court to give up jurisdiction.

[gearhead]

Well does this mine I am sol on this issue in your opinion, what option are left for me to peruse, I now no I messed up sending a DV letter instead of response to summons, does it mean I lose?

[Seadragon]

It goes like this:

use the same caption just change complaint to answer.

I. deny due to lack of information or belief in the truth of the allegations Defendant therefore denys all of Paragraph I.

II. deny due to lack of information or belief in the truth of the allegations Defendant therefore denys all of Paragraph II.

III. deny due to lack of information or belief in the truth of the allegations Defendant therefore denys all of Paragraph III.

IV. deny due to lack of information or belief in the truth of the allegations Defendant therefore denys all of Paragraph III.

V. Admits in part that defendant is a resident of the county and state Denies in part that jurisdiction is proper due to an arbitration clause in the alleged contract.

Wherefore, Defendant prays for the plaintiff to take nothing, and for defendant to recover costs of suit and any other relief the court deems proper.

sign it in accordance withe the statute

First one to the courthouse wins so get this in on Monday Morning first thing and send By fax to the court as soon as you finish your answer tonight. I will help

Edited March 31, 2012 by Seadragon

[kutuzov]

Not yet you need to file an answer ASAP, monday first thing in the morining and send a copy to the lawyer. Pray that the judge will accept it.

[gearhead]

Thank you all for responding I need all the help I can get , One burning question is (for certain) I need to file answers with the court house even thought no complaint was filed by cap1 with the courts just sent to me?

[Linda7]

Thank you all for responding I need all the help I can get , One burning question is (for certain) I need to file answers with the court house even thought no complaint was filed by cap1 with the courts just sent to me?

No. You need to send the answer to the attorneys as it is not yet filed at the courthouse. In addition to sending it to the attorneys, I'd also send them a notice electing arbitration.

Read this thread http://www.creditinfocenter.com/forums/collections/312956-please-help-hennepin-minnesota.html and you will understand more of how to answer your summons for your state.

[Linda7]

Also, I don't know that the complaint contains all the information required.

Read here - Pleadings in a Civil Action

[legaleagle]

It is not clear whether or not the complaint was filed with the court. Was it? Even if it was, you can still answer because they did not file for default. They aren't following procedure any better than you, the court could care less until somebody tries to do something about it.

[gearhead]

I sent out answers to cap1 today, Thank you seadragon.

What do i need to send them to elect arbitration like linda7 suggested, I have asked several times and really need a sample letter, which would make it easier for me to understand or refer me to a thread that has something similar to what I need, arbitration under cap1 2009 agreement.

Thank you all for your help and patients with me, a little slow but starting to put it together.

Edited April 3, 2012 by gearhead

[Linda7]

I sent out answers to cap1 today, Thank you seadragon.

What do i need to send them to elect arbitration like linda7 suggested, I have asked several times and really need a sample letter, which would make it easier for me to understand or refer me to a thread that has something similar to what I need, arbitration under cap1 2009 agreement.

Thank you all for your help and patients with me, a little slow but starting to put it together.

I just now saw this post. Do you still need help with electing or initiating?

I would have elected first and then within your answer to the court, used the fact that you have elected arbitration as an affirmative defense. Also, if you filed a MTC arbitration with the court, you could put as an affirmative defense:

"The Defendant states there is an arbitration clause in the Capital One agreement that takes away both parties litigation rights if elected by either party. Defendant has already notified Plaintiff's attorney of his election to arbitrate pursuant to the terms of said agreement and has filed a motion to compel arbitration with the court. This court lacks jurisdiction and proper venue to decide this matter as Defendant has exercised the binding arbitration agreement."

Edited April 17, 2012 by Linda7

[Seadragon]

I just now saw this post. Do you still need help with electing or initiating?

I would have elected first and then within your answer to the court, used the fact that you have elected arbitration as an affirmative defense. Also, if you filed a MTC arbitration with the court, you could put as an affirmative defense:

"The Defendant states there is an arbitration clause in the Capital One agreement that takes away both parties litigation rights if elected by either party. Defendant has already notified Plaintiff's attorney of his election to arbitrate pursuant to the terms of said agreement and has filed a motion to compel arbitration with the court. This court lacks jurisdiction and proper venue to decide this matter as Defendant has exercised the binding arbitration agreement."

I had added this to the answer but don't know if ity is in OP's answer. I hope it helps with arb.

V. Admits in part that defendant is a resident of the county and state Denies in part that jurisdiction is proper due to an arbitration clause in the alleged contract.