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Summons received, need help writing an answer (I only have 20 days to respond)


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Hey, guys...

 

I am unemployed and have been for several years. I have credit card debt with a local financial institution, and I will be filing Chapter 7 bankruptcy and will be including this debt in the bankruptcy. My problem is that we're nowhere near ready to file and I've received a summons. I have 20 (well, now as of this writing I have 19) days to answer.

 

I really just want to stall the case until my bankruptcy is actually filed, which will be probably about 30 days away due to issues involving myself as well as my attorney's caseload.

 

The page titled "COMPLAINT" reads as follows:

 

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Plaintiff, XYZ CREDIT UNION, by its undersigned attorneys, sues the Defendant(s) MY NAME, herein and alleges:

 

1. This is an action for damages which does exceed $5,000.00 but not $15,000.00 exclusive of costs, interest and attorney's fees.

 

2. Defendant requested a Visa card from Plaintiff, and Plaintiff issued a Visa card to Defendant after Defendant's request for a card.

 

3. Defendant(s) owes Plaintiff the sum of $X,XXX.XX plus interest in connection with Defendant(s)'s use of the Visa charge card under the Visa credit card plan.

 

4. Attached hereto as Exhibits "A" and "B" are a statement of account showing the current balance and a copy of the terms and conditions of the Visa credit card plan.

 

5. All conditions precedent to the filing of this complaint have been complied with by the Plaintiff.

WHEREFORE, Plaintiff demands judgment against the Defendant(s) MY NAME, in the sum of $X,XXX.XX together with interest and court costs.

 

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Ok, the complaint page has the attorney's information at the bottom, but it is not signed.

 

MY FIRST PROBLEM: The first two pages of EXHIBIT "A" are two pages from my most recent Visa statement. However, it DOES NOT include the account number. It has my correct name and address, but the pages from the statement has only ASTERISKS where it says "Card Number". That seems insufficient to me to prove the amount of the debt, since it does not identify the card number or my account number.

 

MY SECOND PROBLEM: The next page of EXHIBIT "A" is a page titled "Credit Card Application". It has my signature on it twice. It has my full name in the "Applicant" section (in someone else's handwriting). HOWEVER: That's all it has on the form. The rest of the form, including the credit union account number, as well as my address, SSN, DOB, ETC, ETC are all COMPLETELY BLANK. The form is from 2005, and I was employed by this credit union in 2005.

 

Is an almost completely BLANK application form sufficient to prove anything? I mean, I don't deny that I applied for the card, but is there a way I can deny that the application is valid without denying that I did apply for such a card?

 

Can you help?

THANKS!

 

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If you are sure that you will be filing Ch 7 in 30 days, I don't believe you have exposure. You might just answer with a general denial just for the sake of getting answer in before your 20 days is up. Even if you don't, what is the likelihood that the plaintiff will file for and get either SJ (or a default judgment if you don't answer) before you file BK?

 

Is the plaintiff an OC or was the debt sold? If the latter, make sure you list both the OC and the debt buyer in your BK filing. Make sure you're listing everyone and everybody even if your not sure of the amounts. While the amount listed is important, what is critical is to list a creditor even if it is only for $5. This way they are getting notice that you are your filing BK and if they turn around and say you owe them $1000, if it is a Ch 7, the difference doesn't make a difference. However, if it is a Ch 13, then you will want them to prove the claim so you don't have to pay out more than you are required.

 

Even if they could turnaround a judgment that quickly a Ch 7 filing will discharge the debt/judgment. It wouldn't be discharged if the plaintiff could prove that you provided false or misleading information on your original application. However, given that you applied for the card back in 2005, I think that would be tough to argue on their part. The only hassle is that if a judgement is recorded prior to a BK filing and it gets discharged, you still may need the attorney's help is getting the judgment erased from the county clerk's records.

 

Having said all this above, have you mentioned the lawsuit to the attorney who will be handling the BK? After all, you are (or will be) paying the guy. Maybe it is just a courtesy call from him/her to the plaintiff's attorney letting them know that you will be heading into Federal Court to file a BK petition. Do they really want to waste time and effort on this for the next month?

 

Do you have any credit card that you are current on (with little or no balance on them) and want to keep? You might not want to list that one so that you may be able to use it after your filing.

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I agree a general denial would be best for you. It will allow flexibility in the bankruptcy proceeding for your BK lawyer to assert some defenses and make them prove their case with a tougher standard.

 

So I believe there is a fl. general denial here on the board. Here is one just in case that may help with format requirements.

Fla. answer.doc

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Your BK attorney is and isn't representing you with regard to the lawsuit. Technically he isn't the attorney of record in the lawsuit, but once you file for BK in Federal Bankruptcy Court, a notice gets sent to the court in Florida (not sure if it will be sent by the BK court or your attorney), This results in an automatic stay of the lawsuit. There is no need for you to file affirmative defenses in the lawsuit.

 

There are only a few instances where a creditor can lift an automatic stay, e.g., a secured lien on your car of your house. Even then, if there is a possibility that you can bring that type of debt current, you would then affirm the debt in BK court. However, you're talking about an unsecured debt, the credit card which is discharged in a Ch 7 filing and becomes part of a repayment plan in a 13.

 

Once you file BK, the court sends out notices to all the creditors listed in your petition.

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Don't worry about it, even if they get a judgement in record time, the BK is going to wipe it out.   Personally if I was filing BK I would either not even worry about answering the suit or I'd turn the suit into a circus just to waste some of the creditors money before the BK went through.  

 

With BK you've thrown your hands up and said mercy, I quit (nothing wrong with that).  Not a lot of real need to fight something that is just going to get nuked in BK.  

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I totally appreciate the advice for a general denial of all claims. However, I'd like to do this right and answer in a more considered fashion. That being said, here is a more pointed question in writing an answer to the complaint:

 

THIS IS A LAWSUIT FILED BY THE ATTORNEY FOR THE OC. It is a credit union where I was employed as an executive from 2000 until 2011 when my position was eliminated in a cost saving move. The account was opened in 2005.

 

I want to admit that #1 and #2 are true. How do I write it?

I want to deny:

 

#3 - The basis for the denial is that I cannot confirm the amount owed since I cannot confirm that they have the correct account here, since none of the documents they provided (Exhibits "A" and "B") have any account number on them whatsoever.

 

#4 - I want to deny that these documents are accurate because they don't have any identifying account number on any of them. In fact, I want to move that the documents should be excluded on that basis.

 

#5 - I want to deny that the provided documents lack the required legal specificity (identifying account information) and I want to demand a dismissal of the case based on that.

 

Please, how would I write my answer?

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