Jump to content

Petition & Alias Summons w/Threat of Bench Warrant on CC Debt Suit


Recommended Posts

Hey everyone, I've been through a credit card lawsuit before, so I know what to expect, but the newest suit has me a little thrown off. Here's how it goes:

 

The plaintiff originally filed a Petition with the county court clerk alleging that I owed them money. There was nothing about responding, etc listed on that page. Just 4 numbers with information stating the following:

 

-(1) This is a communication from a debt collector. This communication i an attempt to collect a debt and any information from this communication will be used for that purpose.

-(2) Plaintiff is duly and legally organized and is authorized to transact business in the State of Oklahoma.

-(3) Defendant for valuable consideration received, entered into a contract for credit with GE CAPITAL RETAIL BANK (WAL-MART) promising to pay the Plaintiff's Assignor GE CAPITAL RETAIL BANK (WAL-MART).

-(4) Defendant defaulted on the contract which has been accelerated by its terms, and after all due and just credits applied and after demand, there remains due, owing and unpaid the amount of $1.756.90.

 

WHEREFORE, Plaintiff prays for judgement against the Defendand in the sum of $1756.90 with interest at the statutory rate to begin accruing from the date of Judgement until the Judgment is paid in full as authorized by 12 O.S. ?727, all court costs, and such other and further relief as to this Court may seem equitable, just, and proper.

 

Dated January, 22 2013

Actually filed with court: February 13, 2013

 

I never received anything from the court, plaintiff or anyone else. Never heard anything about it.

 

Then, this past weekend, my mother was served papers on my behalf. Attached to these papers were the Petition from above and an ALIAS SUMMONS which stated I had 20 days to respond from the date of service. All it said was the following:

 

You have been sued by the above named plaintiff and you are directed to file a written answer to the attached petition in the court at the above address within twenty (20) days after service of this summons upon you, exclusive of the day of service. Within the same time, a copy of your Answer must be delivered or mailed to the attorney for the Plaintiff. Unless you answer the petition within the time stated, judgement will be rendered against you with costs of the action.

 

Issued and signed by Court Clerk on April 1, 2013. 

Served to my mother on April 27, 2013.

 

 

So, with all of that information, I'm confused at exactly what I need to do, so here's my questions:

 

1.) When responding, what am I actually responding to, the Petition? The full petition is typed above, and I don't see what there is to respond to with the way it was written.

 

2.) The person that served the papers didn't sign or date the papers. There is a space that says

    "This summons was served on ____________ . By _______________. (Signature of person serving summons)

Both of these are left blank, can they legally do that, and if so, what shows proof of the day they served the papers?

 

3.) Lastly, the person serving the papers told my mother, "if he doesn't call the number on these papers within 20 days, a bench warrant will be issued for his arrest." The phone number is the number to the law firm. Are they allowed to say this, as I can't see any way that this is accurate?

 

Lastly, I'll provide the information for everyone below. I apologize for this post being so long, but I want to provide all the information possible. I greatly appreciate any responses in advance!

 

 

1. Who is the named plaintiff in the suit? Portfolio Recovery Associates, LLC Assignee of GE Capitial Retail Bank (WAL-MART)

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Rausch, Sturm, Israel, Enerson & Hornik LLC

3. How much are you being sued for? $1,756.90

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

5. How do you know you are being sued? (You were served, right?) Served PETITION and ALIAS SUMMONS

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

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

Process Service Requirements by State - Summons Complaint

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? Oklahoma - Noble (although I don't physically reside there anymore.)

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Approx 2 years

11. What is the SOL on the debt? To find out:  3 or 5 years

Statute of Limitations on Debts

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). Alias Summons and Petition Filed by Plaintiff

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

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? SEE ABOVE PARAGRAPHS. 20 days to respond.

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Nothing was attached

 

 

 

 

 

Link to comment
Share on other sites

Looks like a breach of contract. I would file an appearance, with a motion for a more definitive statement in the cause of action.

I don't know what the ramifications of a process server saying a warrant for your arrest would be issued, but if the attorney did it, you would have a big fdcpa violation. Might want to see if it includes process servers.

Link to comment
Share on other sites

A bench warrant can be issued if you don't show up for court.

 

http://www.consumerfinance.gov/credit-cards/agreements/search/?q=ge  your credit agreement.

 

If you want to make portfolio go away elect arbitration. See Linda7's post on arbitration.

http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/

 

 

PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST

DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRAT ION. THIS MEANS THAT : (1) NEITHER A COURT NOR A

JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPAT E IN A CLASS ACTION OR SIMILAR PROCEEDING;

(3) LESS INFORMAT ION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED.

• What claims are subject to arbitration

1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account,

and us, our affiliates, agents and/or Wal-Mart Stores, Inc. if it relates to your account, except as noted below.

2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual

case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing,

we may require you to arbitrate.

3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage

or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any

dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.

• No Class Actions

YOU AGREE NOT TO PARTICIPAT E IN A CLASS, REPRESENTAT IVE OR PRIVAT E ATT ORNEY GENERAL ACTION AGAINST US IN COURT

OR ARBITRAT ION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY ACCOUNTHOLDER WHO IS NOT AN

ACCOUNTHOLDER ON YOUR ACCOUNT, AND YOU AGREE THAT ONLY ACCOUNTHOLDERS ON YOUR ACCOUNT MAY BE JOINED IN A

SINGLE ARBITRAT ION WITH ANY CLAIM YOU HAVE.

If a court determines that this paragraph is not fully enforceable, only this sentence will remain in force and the remainder will be null and void, and the

court’s determination shall be subject to appeal. This paragraph does not apply to any lawsuit or administrative proceeding filed against us by a state or

federal government agency even when such agency is seeking relief on behalf of a class of borrowers, including you. This means that we will not have the

right to compel arbitration of any claim brought by such an agency.

• How to start an arbitration, and the arbitration process

1. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or

in papers filed in the lawsuit. Otherwise, your notice must be sent to GE Capital Retail Bank, Legal Operation, P.O. Box 29110,

Shawnee Mission, KS 66201, ATTN: ARBITRATION DEMAND. The party seeking arbitration must select an arbitration administrator, which can

be either the American Arbitration Association (AAA), 1633 Broadway, 10th Floor, New York, NY 10019, www.adr.org, (800) 778-7879, or JAMS,

620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com, (800) 352-5267. If neither administrator is able or willing to handle the

dispute, then the court will appoint an arbitrator.

2. If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel

arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding.

3. The arbitration administrator will appoint the arbitrator and will tell the parties what to do next. The arbitrator must be a lawyer with at least ten

years of legal experience. Once appointed, the arbitrator must apply the same law and legal principles, consistent with the FAA, that would apply

in court, but may use different procedural rules.

Link to comment
Share on other sites

Have you checked with the court to see if they actually filed? I'm not sure about Noble county, but my answer was due in 35 days. They might be bluffing, which is a big time FDCPA violation on top of the threat of arrest.

Link to comment
Share on other sites

As StillH20 suggested. call the court to see if a case has been filed against you.  In some states, a case can't begin (commence) until the complaint has been filed with the court.  In other states, it begins begins when the complaint has been served.  Find out which applies in your state.

 

Then, just so you'll know,  you might contact either a NACA attorney or my state bar association.  Ask if a bench warrant can indeed be issued if you don't call the number within 20 days. 

 

If it can't be issued, it doesn't mean you'd have an FDCPA complaint unless the process server works for the JDB.  If he doesn't work for the JDB, an FDCPA complaint would become a little more complicated.

Link to comment
Share on other sites

Thank you guys for the responses. I plan on calling the court tomorrow, but I'm pretty sure they have filed it because it has been stamped and signed by the court clerk. I'm going to spend a couple days deciding on my best plan of action, but arbitration doesn't sound half bad, based on the wording of the contract.

 

If I chose to respond, I don't really see how I should format my response. I guess #3 and #4 in the petition could be objected? 

Link to comment
Share on other sites

@eas21

 

Thank you guys for the responses. I plan on calling the court tomorrow, but I'm pretty sure they have filed it because it has been stamped and signed by the court clerk. I'm going to spend a couple days deciding on my best plan of action, but arbitration doesn't sound half bad, based on the wording of the contract.

 

If I chose to respond, I don't really see how I should format my response. I guess #3 and #4 in the petition could be objected? 

 

No, you don't object.  Allegations are to be admitted or denied.  Since no evidence of the account was included with the complaint, I might answer #3 and #4 by stating:

 

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

Link to comment
Share on other sites

@BV80 - thank you for clearing that up!

 

I've been looking into Oklahoma Rules of Civil Procedure and found this in regards to the papers that were served not being signed or dated. Both of those fields are blank. Here is a section directly from the rules regarding process servers.

 

Summons and Petition.

The summons and petition shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. The failure to serve a copy of the petition with the summons is not a ground for dismissal for insufficiency of service of process, but on motion of the party served, the court may extend the time to answer or otherwise plead. If a summons and petition are served by personal delivery, the person serving the summons shall state on the copy that is left with the person served the date that service is made. This provision is not jurisdictional, but if the failure to comply with it prejudices the party served, the court, on motion of the party served, may extend the time to answer or otherwise plead.

 

Based on what this is saying, I could motion the court and extend the time to answer. My two questions here are, what is the process of that motion, and would it do anything for me other than extend the time (start a trail, showing the plaintiff isn't doing things the way it should be done) or would it be better to ignore that and proceed as I would anyways?

 

The foggy part of this to me is that without a date on the summons, there is no date showing when I have 20 days to respond from. I also don't know if the process server had any credentials to be able to serve me in my area, etc. I'm assuming they do, but I should have the right to know who it is and when my 20 days starts based on the signature and date from the form.

Link to comment
Share on other sites

@eas21

 

It's your call as to whether you want to try to extend the time to answer.  However, as I stated before, unless the process server is an employee of PRA, it's not positive that the failure to put the date on the summons considered the fault of the JDB.  That would be the fault of the process server.

 

Your clerk of court should be able to tell you when the 20 day period begins.

Link to comment
Share on other sites

I'm not in Oklahoma so procedures in your state might be different, but usually the person ( process server) or Sherriff in my case usually has to file a paper with the court informing them of the date of service and the person served. In my experience the very first question out of the judges mouth to the Plaintiff was, was the Service proper and what was the date of Service. If your County has records online you can usually check the case summary for your case.

Link to comment
Share on other sites

Hey guys, I really appreciate all of the responses to this thread. I have decided to answer the summons and then go the arbitration route to get this thing out of court and hopefully make them go away.

 

I do have a couple questions at this point, as filing an answer is my most time pressing task.

 

1.) Based on the petition and summons, which I typed out in the first post, how would you suggest responding to the summons? In a previous case that I had, there were clear cut statements or questions to respond to, so I was able to respond to each one individually. In this, I'm having trouble formatting my response. 

 

2.) Should I file my response and elect arbitration at the same time, or follow the response with arbitration?

 

3.) Regarding the process server mentioning I have 20 days to call the number (the attorney's number) or a bench warrant will be issued for my arrest, would any of you call the number and try to get them to admit that was said during the service? Of course, I'd record the call to try and catch them admitting it. Or, should I just ignore that and proceed with my response and arb?

 

Thanks again for all the help! This forum and it's contributors are one of a kind!

Link to comment
Share on other sites

I would call the number and play dumb while recording it. Let them hang themselves with FDCPA violation. As I understand it, OK is a single party state which means you can record the call without telling them. They'll also likely tell you they're recording it, which should make it difficult for them to fight it as evidence.

 

This is the first time I've seen anything about calling the plaintiff within the 20 days, and they might be trying to intimidate you, or you through your mother. I've looked at hundreds of cases where the defendant never responded at all, and there has never been a warrant issued. That being said, Noble county doesn't seem to have records on OSCN, so I guess it could be a local thing.

 

As far as what to file, I don't know about asking for arbitration, but I'm sure someone will be along to help soon. I havn't seen anything in my research that went to arbitration, but that doesn't mean anything. In OK, we have the Uniform Arbitration Act, Title 12 chapter 38B Here (scroll down): 

http://www.oscn.net/applications/OCISWeb/index.asp?level=1&ftdb=STOKST12

 

 

that you might want to look through.

 

When I filed my answer, I said something to the effect of "Paragraph 1 contains no specific claim that can be admitted or denied; therefore, defendant denies" and I denied the rest of them, since I don't have any documents supporting their claims, and they didn't provide any.

Link to comment
Share on other sites

Deny the alliegations, check your rules to make sure you don't have to put reasons for denial after each one, then at the end state defendant elects arbitration per credit card agreement xxxx.  Make sure you can elect arb before you do.  Some cards have taken that route out.

If you do elect arb, try to make it through JAMS.  There is a whole fourm on arb up top, read through it, Linda 7 has some wonderful stuff posted in there.

Link to comment
Share on other sites

I would hold off on answering their petition(unless ordered by the court to do so) except for a letter electing arbitration with jams  and a copy of the credit agreement and the jams paperwork sent to the opposing attorney.

 

Going too far in the litigation process can be taken as waiving your right to arbitrate.

 

You are challenging the jurisdiction of the court by electing arbitration, so don't do anything to invoke the court's jurisdiction.

I would then file the motion for arbitration with the court as your answer to plaintiffs complaint.


 

Link to comment
Share on other sites

@StillH20 Yeah, I was thinking something along the lines of calling the number and saying this. (This is how I see the conversation going with paraphrasing, lol)

 

Me: "Yeah, hi, I was served by you guys and was told to call this number within 20 days or a bench warrant would be issued for my arrest... (Pause) 

 

Them: Thanks for calling this call is recorded blah blah blah... We needed you to call so we could arrange payment for this debt. How would you like to pay?

 

Me: So if I wouldn't have called within 20 days, I would have had a warrant out for my arrest? (Pause)

 

And see where it goes from there! Also, thanks for the link, I'm studying up now!

 

 

Deny the alliegations, check your rules to make sure you don't have to put reasons for denial after each one, then at the end state defendant elects arbitration per credit card agreement xxxx.  Make sure you can elect arb before you do.  Some cards have taken that route out.

If you do elect arb, try to make it through JAMS.  There is a whole fourm on arb up top, read through it, Linda 7 has some wonderful stuff posted in there.

 

I have been going through Linda7's thread and it is very helpful! Thanks for the tips!

 

 

I would hold off on answering their petition(unless ordered by the court to do so) except for a letter electing arbitration with jams  and a copy of the credit agreement and the jams paperwork sent to the opposing attorney.

 

Going too far in the litigation process can be taken as waiving your right to arbitrate.

 

You are challenging the jurisdiction of the court by electing arbitration, so don't do anything to invoke the court's jurisdiction.

I would then file the motion for arbitration with the court as your answer to plaintiffs complaint.


 

 

@racecar - Right now I'm at 12 days of the 20 to respond. I plan on sending the letter tomorrow to the lawyers electing arbitration. After they receive that, can I go ahead and file my response? I still need to file a response within 20 days with the court, to avoid default judgement, correct? So if I'm understanding you correctly, I would send the arb letter to lawyers, and then file the motion for arbitration with the court as my answer after I have receipt confirmation, assuring me they received the arb election letter?

 

 

 

Thanks again guys for all your help! It is greatly appreciated!

Link to comment
Share on other sites

You can file your motion with the court no need to wait.

How to start an arbitration, and the arbitration process

1. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit.

Link to comment
Share on other sites

@racecar Okay, I did see that. I was more worried about an Oklahoma law that would cause me to waive my right to arbitrate by filing first. I can't seem to find any rules regarding that process.

 

Here's a rough draft of the letter I've planned to send to the lawyers and the OC. Take a look and critique how you see fit. I've basically taken this from @Linda7 's thread and added the part for them to advance the fees. 

 

 

 

Eas21

Their Name/Address

May 11, 2013

Claim or Case #_____________________


 

NOTICE OF ARBITRATION ELECTION


Pursuant to GE Capital Bank Walmart Credit Card Account Agreement, I ELECT arbitration via JAMS to resolve all of our disputes.

As per the agreement, "If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Wal-Mart Stores, Inc.." 

The agreement further states, "The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be sent to GE Capital Retail Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201, ATTN: ARBITRATION DEMAND. The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association (AAA), 1633 Broadway, 10th Floor, New York, NY 10019, www.adr.org, (800) 778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com, (800) 352-5267.”

 

Step 4 of the section of the agreement titled “How to start an arbitration, and the arbitration process,” states: “The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or arbitrator charges, as long as we believe you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs, to the extent you prevail on claims you assert against us in an arbitration proceeding which you have commenced.”
 

Pursuant to the cardmember agreement I am requesting the advance of my fees within 30 days of the receipt of this Notice of Arbitration Election to initiate arbitration.

 

As of this notice you must dismiss or stay any and all actions in regards to the alleged debt pending the result of the Arbitration. 


EAS21


Certified Return Receipt #_________________________ 

 

 

 

I may have too much, but didn't want to leave anything out. Should I include a copy of the contract in my letter to them, or simply send the letter?

Link to comment
Share on other sites

Okay guys, a couple more quick questions. I'm very new to this arbitration process and worried I'm going to do something wrong and screw something up for myself.

 

As you'll see in my rough draft Arb election letter it says, "The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be sent to GE Capital Retail Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201, ATTN: ARBITRATION DEMAND."

 

So, here's my questions:

 

1.) Do I need to send a copy of the letter to GE Capital Retail Bank, or just to Portfolio's Lawyers? Based on what it's saying above, it looks like since it's after the beginning of a lawsuit, it would just be sent to the lawyers?

 

2.) Should I attach the agreement with the letter(s) or just include the arb election letter as exhibit in motion to compel?

Link to comment
Share on other sites

Okay guys, a couple more quick questions. I'm very new to this arbitration process and worried I'm going to do something wrong and screw something up for myself.

 

As you'll see in my rough draft Arb election letter it says, "The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be sent to GE Capital Retail Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201, ATTN: ARBITRATION DEMAND."

 

So, here's my questions:

 

1.) Do I need to send a copy of the letter to GE Capital Retail Bank, or just to Portfolio's Lawyers? Based on what it's saying above, it looks like since it's after the beginning of a lawsuit, it would just be sent to the lawyers?

 

2.) Should I attach the agreement with the letter(s) or just include the arb election letter as exhibit in motion to compel?

File it with the court in triplicate, one for the judge, one for the Plaintiff and one for an extra copy if the court needs it. Mail cmrrr one copy to Portfolios attorney, just in case the court clerk does not do his/her job.

 

My state requires you file a Motion to compel Arbitration.

Link to comment
Share on other sites

Okay, I've got my documents prepared and here's how I plan to proceed this upcoming week. I'm open to any feedback/suggestions if you have them.

 

Monday - Sending arb election letter to lawyer.

Wednesday - Filing my answer and motion to compel arbitration with the court with two attached exhibit's (cardmember agreement and arb election letter sent to lawyers), and mailing copies to attorney. Also will include a judge's order with the MTC.

 

I'm still a little gray about a few things, but I think I'm ready to proceed. Still wouldn't mind someone critiquing my arb election letter from a few posts back. My main question at this point is whether or not I'm required to send the arb election letter to the original creditor as well, since they charged the account off and sold it. I'll probably do it to be safe, unless someone suggests against it.

 

As a side note, the lawyers for Portfolio sent me a letter today offering a settlement on the $1,756.90 debt for the amount of $1,400. LOL!

Link to comment
Share on other sites

@shellieh98 - Okay, thank you! I just wanted to make sure. In @Linda7 's thread, it mentioned sending one to both, but I wasn't sure if that would apply in this exact situation. And just to make sure, I just send it to the lawyer listed on the summons, correct, not Portfolio? Obviously Portfolio is the plaintiff, but I'm assuming the local lawyers are the one's I'm sending everything to.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.