bambi

being sued, what's next?

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1.  The Defendant,  Bambi, hereinafter "Defendants(s) is a resident/are residents of the city of. . . . . 

answer:  admit

 

2.  The Defendants opened an account agreeing to make monthly payments for purchases charged to the account.

answer:  The defendant denies.  No agreement has been appended in support of the allegations in the Complaint.  The plaintiff's complaint indicates the existence of an assignment, which was not appended to the complaint per the rules of civil procedure.

 

3.  Defendants did make purchases and charged same to the account, but the Defendant failed to make the monthly payments due on the account.

answer"  The defendant denies.  Def. lacks knowledge or information sufficient to form a belief as to the truth of the allegation.  The exhibit provided is based on hearsay.  Defendant demands strict proof thereof. 

 

4.  Plaintiff has completed performance and rendered an account stated in the sum of 21,333.23  (see plaintiff;s exhibit 1)

answer:  The defendant denies.  Def. lacks knowledge or information sufficient to forma a belief as to the truth of the allegation.  Def. demands strict proof thereof.

5.  The Plaintiff has declared the Defendant to be in default and demands payment of the balance due on the account.  Defendant has refused said demand.

answer:  same as 4

 

Wherefore, the plaintiff prays for judgment against the Defendant in the of 21,333.23 plus costs.  

 

I will try to get the affidavit typed soon.

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They are suing you under the Account Stated theory. Their contention will be that you agreed to what they say you owe by not disputing the balances on your monthly statements.

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OK, here we go with the affidavit.

 

1.  I am over 18 years old and competent to make this affidavit.  I am a custodian of records and an authorized officer of Plaintiff FIA card services, N.A. for purposes of this affidavit.  I am duly authorized to make this affidavit, and because of the scope of my job responsibilities, I am familiar with the manner and method by which Plaintiff maintains its normal business books and records, including computer records of defaulted accounts.

 

2.  These books and records are made in the course of regularly conducted business activity:  (1) at or near the time the events they purport to describe occurred, by a person with knowledge of the acts and events, or (2) by a computer or other similar digital means, which contemporaneously records an event as it occurs.  The contents of this affidavit are believed to be true and correct based upon my personal knowledge of the processes by which Plaintiff maintains its business books and records.

 

3.  The books and records of Plaintiff show that defendant opened an account with FIA card services, N.S. or a predecessor in interest, for the  purpose of obtaining an extension of credit and did thereafter use or authorize the use of the account for the acquisition of goods, services, or cash advances in accordance with the customer agreement governing use of that account.  Further, defendant has breached the agreement by failing to make periodic payments as required thereby.

 

4.  The defendants account number prior to charge off was xxxx xxxx xxxx xx12.  The defendants account number was subsequently changed and currently the account number for this he/she owes the debt is xxxx xxxx xxxx xx52.                        

 

5.The books and records of Plaintiff show that defendant is currently indebted to Plaintiff on account number xxxx xxxx xxxx xx52 for the just and true sum of 21,333.23 and that all just and lawful offsets, payments and credits have been allowed.  The customer agreement entered into between the defendant and the Plaintiff, or a predecessor in interest, also authorizes to recover from defendant reasonable costs to the extent permitted by law.

 

6.  I declare under the penalty of perjury that the foregoing is true and correct and if called as a witness I would competently testify, under oath, thereto.

 

It was signed Nov. 28, 2012, and the complaint was issued on 1-10-13.  It is signed by someone in NC.

 

I hope this helps.  Thanks for everyones input.

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Did they send any statements showing charges and payments? The affidavit is weak and just speaks of "the records". Without specific mention of a record that supports the statements made, the affidavit is conclusory and lacks foundation.

 

That being said, a word of caution. You have the original creditor coming after you for $21,000. There is no assignment as this debt has not been sold. This will be an incredibly hard fight to win. Having bmc100 on your side is going to help a ton but this will be very difficult as the OC's usually have more thorough and accurate records and they most likely WILL send a witness to trial for this sum of money.

 

Sorry to be a downer but I want you to have a realistic look at what you're dealing with. OC's are way tougher to beat than JDB's.

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Nothing else has been sent to me.  I know I'm up against a tough fight, and I appreciate your honesty.  That's kinda what I'm looking for is what to expect, or have an idea what may be coming next.  I don't remember them ever sending me anything prior to my getting the summons and complaint.  Do they or are they suppose to send out something before hand requesting payment, etc?  Just curious.  Anyways, thanks for your honesty, it helps me not to panic so much.

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I don't remember them ever sending me anything prior to my getting the summons and complaint.  Do they or are they suppose to send out something before hand requesting payment, etc?  Just curious.

 

I assume they sent statements and bills every month? This is a credit card, correct?

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Yes it's a cc, and yes I received statements every month, but I was wondering about the attorney.  I don't ever remember  them sending any type of collection letter.  I don't remember getting any type of correspondence from them prior to receiving the summons and complaint.

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Yes it's a cc, and yes I received statements every month, but I was wondering about the attorney.  I don't ever remember  them sending any type of collection letter.  I don't remember getting any type of correspondence from them prior to receiving the summons and complaint.

 

Keep in mind, this attorney is collecting for the OC. The OC still owns the account, sent you bills and then hired a lawyer to sue you for it. Once the lawyer is hired, their first contact with you can be a summons.

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Technically no, an attorney is still a debt collector under the FDCPA. They have to still follow the FDCPA statutes.

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Hmmmmm, so does this mean anything to me?  Does it affect anything that I'm doing or preparing for?

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Technically no, an attorney is still a debt collector under the FDCPA. They have to still follow the FDCPA statutes.

 

Hmm. So where exactly did the lawyer not follow that?

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Yes it's a cc, and yes I received statements every month, but I was wondering about the attorney.  I don't ever remember  them sending any type of collection letter.  I don't remember getting any type of correspondence from them prior to receiving the summons and complaint.

 

bambi,

 

NEVER NEVER NEVER EVER admit receiving statements.

 

Make them prove you received any statements.

 

There's case law which discusses merely sending a statement does not imply an existing liability. Otherwise, I'll send you a statement and if you don't disagree I'll sue you in court on it.

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bambi,

 

NEVER NEVER NEVER EVER admit or deny receiving statements.

 

 

How can you not ADMIT or DENY?

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How can you not ADMIT or DENY?

 

How can you not ADMIT or DENY?

I don't know what you are talking about.  :banana: With a baseball bat.

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I don't know what you are talking about.  :banana: With a baseball bat.

Earlier in post #38 you said never admit or deny,  I was just wondering what you meant. It made more sense before the post was edited.

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OK, July 3, it will have been 30 days since the lawyers office signed for the request for the production of docs.  What should my next step be, and when should I do it?  I want to be ready with something as soon as this date rolls around, if I have not heard from them.  

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OK, July 3, it will have been 30 days since the lawyers office signed for the request for the production of docs.  What should my next step be, and when should I do it?  I want to be ready with something as soon as this date rolls around, if I have not heard from them.

You probably have to give them 5 additional days for mailing (depending on what your rules say). Then the next step is to send them a meet and confer letter telling them to respond to your discovery request in 10 days or you will file a motion to compel discovery with the court. When they do not respond you must follow up and do what you said you would do and file the motion.

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OK, I want to be prepared to send out the letter when the time rolls around.  Thank so much.  I will probably need help to file a motion if it comes to that.

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OK, I want to be prepared to send out the letter when the time rolls around.  Thank so much.  I will probably need help to file a motion if it comes to that.

Very smart. I would be looking into your local court rules about motions and learn about drafting and filing them, because you will be doing that (they rarely cooperate with discovery).

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I have drafted up a letter to get ready to send out in a couple of days.  What do you think?  It's pretty simple, but I don't completely understand all of the lingo, and don't want to say something that I don't know what it means.

 

 

You were served with my Request for Production on June 3, 2013, 32 days ago.  To date, you have not responded to the Request for Production.

 

This letter asks you to please respond to the Request for Production, Set One by July 21, 2013.  If I do not receive it, I will file a motion in court to compel discovery.  

 

Sincerely,

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How about "If it is not received within 10 days of the receipt of this letter...".

 

Give 'em a time frame and make 'em follow it.

 

I'd also include a copy of the request and add, "A copy of the Request For Production has been enclosed for your convenience".

 

Kill them with civility.

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I would tighten the time frame. Do not threaten to take further action. If they do not respond and you sent out admissions, all admissions not answered will be deemed admitted.

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Ohhhh, I'll add in your comments flyer fan, thanks.  No, I did not send out admissions, only production.  I didn't know what to say in a request for admissions.  I sent back my answers to their admissions, but I did not send them a request for admissions.  So, should I still threaten with a motion?

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Ohhhh, I'll add in your comments flyer fan, thanks.  No, I did not send out admissions, only production.  I didn't know what to say in a request for admissions.  I sent back my answers to their admissions, but I did not send them a request for admissions.  So, should I still threaten with a motion?

 

Yes. If a plaintiff is ignoring discovery, admissions is a great idea. Why? If they ignore them they can be admitted. 

 

Have one admission state something like: "Admit the plaintiff is not the legal owner of the debt that is the subject of this lawsuit" and their case is utterly destroyed if they ignore them.

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