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Help! Being sued and need help with my answer.


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Thank you so much for the response. I will upload the docs of what they gave me later today after work. Thanks so much for your help.

 


If you are inquiring about a lawsuit in which you are the defendant (ie you are being sued), you need to answer the following questions (as much as possible):

1. Who is the named plaintiff in the suit?

LHR, Inc.; assignee of First National Bank

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

Mason, Schilling and Mason, LP 

3. How much are you being sued for?

$1,621.85

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

First National Credit Card 

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

Stumbled across it on a public court docket two months after it had been filed. Finally served in early April.

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

Certified Mail

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?

They sent me a packet containing statements, an affidavit, the contract (just a copy-- not a signed one) and a letter saying my account had been placed with their office. I believe this is their "debt validation." This was sent via regular USPS, not Certified Mail. No mention of a lawsuit. 

9. What state and county do you live in?

Ohio, Cuyahoga County. 

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

02/2009. It is within the SOL. 

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

Six 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).

 

Suit served. Waiting to file my answer. Have 30 days. 


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, but they sent it to me anyway (or at least what I'm assuming it is. It's a packet of statements, the credit card contract (unsigned), an affidavit and a letter saying my account was placed with them. 

15. How long do you have to respond to the suit? (This should be in your paperwork). 

30 days from 4/5/13. 

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

Billing statements, an unsigned contract and an affidavit from someone named "N. BURNS" (no idea who that is) saying he has intimate knowledge of the CC's billing practices. 

 

 

 

 

 

I would like some advice on how to proceed here. Here's a little more information:

 

I do owe this debt to the original CC. However, the original amount was about $500. It's now $1600 due to fees. I would like to get the amount of the judgment reduced drastically, if possible. Obviously, I'd also like to find a way to get out of this all together. 

 

I am judgment proof. I own no property, have no verifiable income (I'm a stay at home mom. My husband works, but we have no joint checking accounts right now and this is a debt incurred before I was married) and have less than $400 in my checking account at any given time (which is the exemption amount for bank account garnishments in Ohio). A judgment against me wouldn't really do the JDB any good. 

 

 

 

What is my next action? Is there an option to declare judgment proof status, and does this usually have good results?

 

Also, can I attack the JDB's affidavit due to the fact that "N. BURNS"'s isn't really listed as a company employee or anything? Can I subpoena this "N. BURNS" in my discovery? 

 

I basically need help figuring out how to respond to the summons. Please help. Thank you so much, everyone! :)

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Do you have the original agreement? If it specifies private arbitration, like maybe JAMS, that should get rid of this. These guys paid 2 or 3 cents on the dollar for your account, JAMS can cost $6,000 per day, and they have to pay for it. They won't.

 

I do have the agreement. I'll look it over. My husband is hell bent on getting a lawyer to represent me "just out of principle," but considering it's a $1600 prayer, I'm really not comfortable hiring a lawyer. I know it'll cost us more than that. 

 

Thanks for the response.

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We need to know the allegations in the complaint.  If LHR purchased the account and is suing for themselves, that's one thing.  However, if FNB still owns the account, and LHR was merely assigned to collect, that's another.

 

Does LHR have a business in your state?   This is from the OH statutes:

 

1319.12 Taking assignment of debts.

 

(b) A collection agency with a place of business in this state may take assignment of another person’s accounts, bills, or other evidences of indebtedness in its own name for the purpose of billing, collecting, or filing suit in its own name as the real party in interest.

 

According to the above, if FNB still owns the account, LHR must have a place of business in your state in order to sue under their own name.

 

You can also check your credit report.   If FNB is reporting, see if their entry shows that the account has been sold or transferred.  Also, check the date FNB last reported.

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We need to know the allegations in the complaint.  If LHR purchased the account and is suing for themselves, that's one thing.  However, if FNB still owns the account, and LHR was merely assigned to collect, that's another.

 

Does LHR have a business in your state?   This is from the OH statutes:

 

1319.12 Taking assignment of debts.

 

(b) A collection agency with a place of business in this state may take assignment of another person’s accounts, bills, or other evidences of indebtedness in its own name for the purpose of billing, collecting, or filing suit in its own name as the real party in interest.

 

According to the above, if FNB still owns the account, LHR must have a place of business in your state in order to sue under their own name.

 

You can also check your credit report.   If FNB is reporting, see if their entry shows that the account has been sold or transferred.  Also, check the date FNB last reported.

 

I assume I'll be served today (the docket says certified mail was sent out yesterday to me real address-- they sent it to the wrong one before), so I should know more then.

 

According to the docket, though, the plaintiff is "LHR Inc., assignee of FNB." 

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I just checked my credit report. There is an entry from FNB that says "charged off." There is also an entry from LHR for the same debt (although the LHR entry says "Capital Credit Services" as the original creditor). Not sure what this means. I'll update again when I get the summons, which should be in a few hours.

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I'm going through the same thing right now and just filed my answer with the court last week. I received a letter for a case management court date less than a week later. Read the summons and complaint very carefully. When you write the answer make sure to follow your state's rules of civil procedure or the court may not accept your answer. Check with your court to see if they have a specific form to answer (mine didn't and I just wrote it). You also have to serve a copy of your answer on the plaintiff. Basically you just answer admit or deny to every statement/allegation in the complaint. There are alot of sample answers out there but you have to customize it to your specific situation. The people here are great and will help you alot. I'm also doing this without an attorney and considered "judgement proof". Good Luck! I know how mind rattling this is!

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OK, I was just served. I have the appropriate paperwork now and could use your guys' help in forming a good answer. 

 

Here is what I received/info about what I received:

 

 

 

LHR, Inc.; assignee of First National Bank, is listed as the Plaintiff (verbatim). (I'm not sure if this is considered to be the same as the OC or not???) 

 

The claims for relief are as follows:

 

1. Defendant entered into a lending agreement with the Plaintiff (again, not sure if they mean LHR or the OC-- possible defense?) and is in default owing $1621,85 of principle balance. Defendant has failed to comply with Plaintiff's demand for payment. 

 

2. Plaintiff re-alleges the allegations contained in paragraph 1 of the complaint. Defendant has been unjustly enriched to the detriment of the Plaintiff. Defendant owes Plaintiff principle balance of $1,621.85. Defendant failed to comply with Plaintiff's demand for payment.

 

3. Plaintiff re-alleges the allegations contained in paragraphs 1-2 of the complaint. Plaintiff rendered a statement of the account to Defendant and the defendant has not objected to the amounts or balance owed in a reasonable amount of time. Attached here is documentation of the balance due. 

 

 

 

The items included in the summons are as follows (in this order):

 

* Complaint paperwork filed w/ court

 

*Affidavit 1 from the litigation manager of LHR, INC. saying she has personal knowledge of the record keeping practices of the OC. Also states the balance (prayer), interest rate of 5.0%, and account opening date. This affidavit is notarized.

 

*Affidavit 2 from affiant "N. Burns", who has no listed affiliation or job title on the affidavit with either the OC or LHR, but basically implies (but does not state specifically) he's from the OC's office and has intimate knowledge of their record keeping practices. This affidavit is notarized. 

 

*Bill of Sale (exhibit A): This bill of sale does not list any information whatsoever about my account, the amount it was sold for, my name, my account number, the amount in question, any balance or anything. It does state a date of 11/22/11, but there is no information regarding whose account this is. There is no information whatsoever that proves this bill of sale has anything to do with my account. The signature is also illegible and there is no name beneath it so as to describe whose signature I'm seeing. 

 

*The last credit card statement on the account. The amount due is the amount they're seeking: $1621.85. It does not list my purchases or anything. 

 

*An unsigned credit card agreement/contract from the OC. 

 

 

 

 

OK, so I have 28 days from today, 4/5/13, to send my answer. I'd like to be able to discredit some of this evidence, if possible. My brain says the bill of sale can likely be attacked since it contains no information about my account. I may also be able to attack the last billing statement as it contains no itemized information or purchases or anything. If possible, I'd also like to subpoena both (or either) affiants from the affidavits, or at least subpoena their employment records. 

 

Can you guys tell me if this is the right way to go? If so, can you help me file the answer as such? And if not, what would you do? All the help I get will be amazingly appreciated. In advance, thank you so, so much!

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I'm going through the same thing right now and just filed my answer with the court last week. I received a letter for a case management court date less than a week later. Read the summons and complaint very carefully. When you write the answer make sure to follow your state's rules of civil procedure or the court may not accept your answer. Check with your court to see if they have a specific form to answer (mine didn't and I just wrote it). You also have to serve a copy of your answer on the plaintiff. Basically you just answer admit or deny to every statement/allegation in the complaint. There are alot of sample answers out there but you have to customize it to your specific situation. The people here are great and will help you alot. I'm also doing this without an attorney and considered "judgement proof". Good Luck! I know how mind rattling this is!

Feel free to "friend" me on here (can we even do that? I don't know much about this board...). Maybe we can help each other out too, since it appears we're both on the same track. :)

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How do I do this? Do I request it through the courts or through the OC?

 

I'm not that familiar with the process, Linda7 is the arbitration expert around these parts.

 

Oh, and also, if they run for the hills, is that grounds for dismissal? :-) TIA. 

 

Yes, arbitration has costs associated with it, there are usually terms outlining it in the card member agreement. Someone here mentioned that it cost upwards of $5000 to arbitrate and the JDB pays the bulk of it. They'll give up rather than pursue it on such a small debt.

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You guys are fantastic. I'll shell out the $50. Is it weird that as scary as this is, I'm actually enjoying doing the detective work? :)

 

I'll contact Linda7 and see what she says. My goal is to file as many defenses (or whatever you call something that would deter the JDB from further pursing the debt) with my answer as I can. If I request arbitration, motion to strike the affidavits (or at least request more info on the affiants) and motion to strike the bill of sale, it sounds like I'll be on pretty safe ground. 

 

My next mission will be to make sure my kid doesn't make the same mistakes I did when I was young and stupid and ring up a bunch of debt! :)

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Going the arbitration route wipes out any court activity. So no need to motion to strike anything. You elect arbitration and that's that. But definitely look into it before you decide on a course of action.

 

I think I have to file a motion to pursue arbitration with the court, though, right? Or an intent to pursue? Something like that? 

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Defendant entered into a lending agreement with the Plaintiff

 

If you do decide to fight in court, start with a motion to dismiss the complaint based on the fact that they are not the proper party in interest. You never entered into any agreement with the plaintiff as stated, therefore they cannot sue you. It's semantics and they will amend the complaint, but it lets them know that you are on top of the legal system and they are going to have a very hard time with you. We can make them spend six times what they are ever going to get, and they'll see that.

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Defendant entered into a lending agreement with the Plaintiff

 

If you do decide to fight in court, start with a motion to dismiss the complaint based on the fact that they are not the proper party in interest. You never entered into any agreement with the plaintiff as stated, therefore they cannot sue you. It's semantics and they will amend the complaint, but it lets them know that you are on top of the legal system and they are going to have a very hard time with you. We can make them spend six times what they are ever going to get, and they'll see that.

 

Thanks! I was thinking of striking their bill of sale as well since it doesn't have any of my account info on it whatsoever. Or perhaps subpoenaing the affiants in the affidavits and questioning their credentials. Do you think I should do that along with that?

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No, do one thing at a time. Don't get carried away, you aren't up to speed yet. You can go after their evidence later, if they don't dismiss after a couple of basic steps we're going to teach you. See if arb gets rid of them if you want to go that route, don't get into litigation or arb will be denied by the court.

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