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needahand

So lost, any help? Suit filed

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Hi from a newbie who luckily found this board! After reading sooo much for hours over the entire holiday weekend, I am still floundering on what to do- although I  certainly have more of a clue than before I found it!  I only have three days to file all of my responses, and I am certainly panicking!

 

Here is a summary of my situation:

     I was summoned to court for a debt less than 5k from a JDB claiming they purchased the debt (HSB) in Mass in 2008 from an account supposedly entered in 2005. JDB requesting relief in amount of about 4300.  I responded to the court & the jdb that:

1/ the debt was not valid &

2/ to provide the original signed agreement w/balance on account from 0-present.

 

     Instead I received a notice of case management conference.  I appeared the attorney was late and it was rescheduled.  Two days before this date (and received when I got home from court), JDB sent Things to Be Produced & Interrogatories, Requests for Admissions, as well as an agreement for judgment addressed to the court.  In the new set of papers and in the request for judgement, they now say I owe almost 7000!  What happened to 4300?  I don't get it. 

 

     The only "proof" they have is my name and address and the last four of an account number with HSB.

 

     I had an account with HSB previous to the date they give, with different last four of number.

I want to go to arbitration and don't know if I can use the terms & conditions of the HSB account that I do have information on (account number, agreement) that which differs from what they propose.  However, I am pretty certain this account was written off and is for the year before their "on or about" statement.   I am so lost and my questions on the following, if anyone would be so kind to offer any advice?

#1) can I object due to the fact that they have not verified the debt that asked for in my response?
#2) can I object due to the conflicting #'s they presented in their summons & in the agreement for judgment & Request for Admissions?

#3) can I use my credit card agreement to force arbitration, even though the date and last four of account number are different?  If so what steps might be suggested I take???

 

Any help would be great, and I will keep reading all of these forums.  I know that I want to send/file an opposition to plaintiff's motion for summary judgment, but I want to certainly include key points in--perhaps an ammended answer to the court so that I can force arb. Thoughts, anyone?

Thanks to anyone who may offer advice. 

 

 

(edit) okay, I realize that my "answer" was a too late to do anything request for verification so nix #1 Q!

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Hi from a newbie who luckily found this board! After reading sooo much for hours over the entire holiday weekend, I am still floundering on what to do- although I  certainly have more of a clue than before I found it!  I only have three days to file all of my responses, and I am certainly panicking!

 

Here is a summary of my situation:

     I was summoned to court for a debt less than 5k from a JDB claiming they purchased the debt (HSB) in Mass in 2008 from an account supposedly entered in 2005. JDB requesting relief in amount of about 4300.  I responded to the court & the jdb that:

1/ the debt was not valid &

2/ to provide the original signed agreement w/balance on account from 0-present.

 

     Instead I received a notice of case management conference.  I appeared the attorney was late and it was rescheduled.  Two days before this date (and received when I got home from court), JDB sent Things to Be Produced & Interrogatories, Requests for Admissions, as well as an agreement for judgment addressed to the court.  In the new set of papers and in the request for judgement, they now say I owe almost 7000!  What happened to 4300?  I don't get it. 

 

     The only "proof" they have is my name and address and the last four of an account number with HSB.

 

     I had an account with HSB previous to the date they give, with different last four of number.

I want to go to arbitration and don't know if I can use the terms & conditions of the HSB account that I do have information on (account number, agreement) that which differs from what they propose.  However, I am pretty certain this account was written off and is for the year before their "on or about" statement.   I am so lost and my questions on the following, if anyone would be so kind to offer any advice?

#1) can I object due to the fact that they have not verified the debt that asked for in my response?

#2) can I object due to the conflicting #'s they presented in their summons & in the agreement for judgment & Request for Admissions?

#3) can I use my credit card agreement to force arbitration, even though the date and last four of account number are different?  If so what steps might be suggested I take???

 

Any help would be great, and I will keep reading all of these forums.  I know that I want to send/file an opposition to plaintiff's motion for summary judgment, but I want to certainly include key points in--perhaps an ammended answer to the court so that I can force arb. Thoughts, anyone?

Thanks to anyone who may offer advice.

Your name, address, and partial AC# is not proof of anything. But before we even get into that; are sure the SOL has not run on this debt? I believe it is 6 yrs. in your state. They said they bought it about 5 yrs. ago, but it would have already been in default, so it would have to be close. If you haven't already; I would check your credit report.

Also, did they file for a summary judgment?

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Would be a good idea to post the Plaintiffs MSJ...

That way we would see what the Plaintiff is claiming.

 

Kinda standard... "lack of standing"  as a defense.

Link to a good read below in my signature by Coltfan1972.

 

I would think the account numbers should definitely match. . .

 

Remember the Plaintiff must PROVE they OWN the debt, and also must PROVE you OWE the debt.  :) 

Make them PROVE it !

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Thank you for answer. I have not checked my credit report yet. I should today.  I am not sure if I should go through experian, they have an arb clause and just not sure if this is what I want.  I also do think it is close to SOL which is why they are filing suit now.  Yes, I believe so although it is titled "Agreement for Judgment".  I am going to post below..

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Peanutrs, thank you also.  I have just printed the lack of standing thread you referenced and will read it over. 

 

Below is the "agreement for judgment" but they did not send a "motion for summary judgment".  Is there a difference?  I still can't believe they file for two different amounts with thousands of dollars difference.  There has to be something wrong with that too!

 

AGREEMENT FOR JUDGMENT

 

     It is hereby agreed that judgment may be entered in this action for Plaintiff herein, against Defendant herein, in the sum of $7,000.00, plus costs in the amount of XX and post-judgment interest as allowed by law.  Plaintiff hereby waives attorneys' fees.

 

     All parties listed below notice otherwise required by Rule 77.

 

PLEASE ISSUE JUDGMENT AND EXECUTION

 

 

Plaintiff,                                                                                                       Defendant,

 

___________                                                                                              ________________

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http://www.consumerfinance.gov/credit-cards/agreements/search/?q=hsbc

http://webcache.googleusercontent.com/search?q=cache:rDYWFPfx71oJ:www.oag.state.va.us/Opinions%20and%20Legal%20Resources/Opinions/2011opns/10-128-Janis.pdf+&cd=2&hl=en&ct=clnk&gl=us

We make our credit decisions and extend credit to you under this Agreement from Virginia.

This Agreement is:

• entered into in Virginia; and

• maintained in Virginia.

This is true whether or not you use your Card in Virginia.

In actions upon any unwritten contract, express or implied, within three years.

In actions on any contract which is not otherwise specified and which is in writing and signed by the party to be charged thereby, or by his agent, within five years whether such writing be under seal or not;

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The above 'Agreement For Judgment' is just an attempt to intimidate you. Most commonly called a stipulated judgment, it carries no weight at all unless signed by both plaintiff and defendant. Don't sign it.

 

You just had a case management conference and are a ways from summary judgment or a trial.

 

You must answer the plaintiff's discovery (Things to Be Produced & Interrogatories, Requests for Admissions) and you should send your own discovery to plaintiff.

 

I'm not from your state and don't know your civil procedure but you need to research the time lines required as to discovery (which should have been laid out at your case management conference) and filing motions and responses to motions.

 

As for your credit report, go to www.freecreditreport.com you are entitled to a free credit report from all three agencies once a year and you can get all three from the above site.

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The above 'Agreement For Judgment' is just an attempt to intimidate you. Most commonly called a stipulated judgment, it carries no weight at all unless signed by both plaintiff and defendant. Don't sign it.

The bottom feeders do often rely on your help to win their case.

 

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Nice, thank you both & that is a relief regarding the scare tactics.

 

One thing I am reviewing is that according to Mass Civil Procedure, if I don't make specific denials  in my answer to their pleading, than it is the same as agreeing.

© Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.

(d) Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

 

 

It looks like my time period available to amend is up, because there is a date set in court. My answer: the account is not valid.  That was it! 

 

I did not address their "standing", statute of limitations, or any other affirmative defense.  So I am now reading on how to amend my pleading- although the code is so tricky to understand.  It looks like I cannot without "leave of the court."  Totally clueless here.  They specifically ask in their discovery what my defense will be presented, and not sure if I can bring up anything that was not addressed in my answer?  (ie sol, standing??)  Does anyone know what I might do in this situation?

 

 

 

In regards to my own motions for discovery, it looks good: (d) Sequence and Timing of Discovery. Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery. 

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Did you find a rule that states that if a court date has been set that you can't amend ......... or are you just assuming?

Typically court dates are set well in advance just for the scheduling concerns of the court.

 

I would look really hard for a rule that gives the time frame for amending an answer as I believe that is what you must do.

Barring that ............you may need to file a motion asking leave of the court to amend.

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http://www.lawlib.state.ma.us/source/mass/rules/civil/mrcp15.html rules of procedure

(a) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served and prior to entry of an order of dismissal or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

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As racecar posted, I have to get leave of the court or by written consent of the "adverse party", because I am well outside of the 20 day window.  I can't use any affirmative defenses, I am basically up the creek!  Unless....I can figure out how to word a document seeking courts permission to amend my answer to complaint.  This seems to be my biggest issue at the moment., and the fact that they want to know my "defenses" in the interrogatories and other than the debt is not valid...haa.  I feel ill about this, and I consider myself to be smart as a rule but not so much today.

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As racecar posted, I have to get leave of the court or by written consent of the "adverse party", because I am well outside of the 20 day window.  I can't use any affirmative defenses, I am basically up the creek!  Unless....I can figure out how to word a document seeking courts permission to amend my answer to complaint.  This seems to be my biggest issue at the moment., and the fact that they want to know my "defenses" in the interrogatories and other than the debt is not valid...haa.  I feel ill about this, and I consider myself to be smart as a rule but not so much today.

It's not about being smart, it's about knowing laws (or learning them). You were smart to fight the case. A lot of what you are trying to do here is not an affirmative defense anyway, it is a denial, covered by you answer.

Standing: You denied all allegations in complaint. Or if you did not the parts you deny relate to their standing (or lack of it). They have to prove standing to bring the suit all the way to trial, and you can challenge it and have done so in your answer. You did not need it as an affirmative defense anyway.

SOL: It would have been nice to assert it as an affirmative defense, (although it may not apply anyway) but you can just "bundle" that up as part of standing. "In addition to other issues the bottom feeder does not have standing to sue me because the SOL has already ran on this alleged debt".

That clears up what "seems to be the biggest issue of the moment"

As far as them wanting your arguments in the interrogatories; you do not have to make their case for them. Your response: OBJECTION: Premature. Defendant does not have to argue or defend the case in discovery, but will appear at trial to do so and will litigate actively.

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It's not about being smart, it's about knowing laws (or learning them). You were smart to fight the case. A lot of what you are trying to do here is not an affirmative defense anyway, it is a denial, covered by you answer.

Standing: You denied all allegations in complaint. Or if you did not the parts you deny relate to their standing (or lack of it). They have to prove standing to bring the suit all the way to trial, and you can challenge it and have done so in your answer. You did not need it as an affirmative defense anyway.

SOL: It would have been nice to assert it as an affirmative defense, (although it may not apply anyway) but you can just "bundle" that up as part of standing. "In addition to other issues the bottom feeder does not have standing to sue me because the SOL has already ran on this alleged debt".

That clears up what "seems to be the biggest issue of the moment"

As far as them wanting your arguments in the interrogatories; you do not have to make their case for them. Your response: OBJECTION: Premature. Defendant does not have to argue or defend the case in discovery, but will appear at trial to do so and will litigate actively.

Thank you!  I definitely need to look at the point you made last.  I believe I had read that I MUST answer the question.  But if in fact that were the case, would it not be for the court to force the answer as well?  Might the answer again be that the debt is not valid?  Interesting to think on...wish I had more time!

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Here is an example of a Plaintiff's Response To Defendants Motion For Leave to Amend Answer in Massachusetts .......... you can learn from it and research it's case law and modify it to fit your needs.

 

Maybe you can find something else ............

Thank you!  This is very appreciated.  I did, but it is in Florida....still will hunt

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Thank you!  I definitely need to look at the point you made last.  I believe I had read that I MUST answer the question.  But if in fact that were the case, would it not be for the court to force the answer as well?  Might the answer again be that the debt is not valid?  Interesting to think on...wish I had more time!

It says you must RESPOND. An objection is a response. If you have not already; I would not admit to anything and do not make their case for them (they usually do need your help to prevail).

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Might the answer again be that the debt is not valid?

Maybe. Maybe it is valid; but it's not yours. Or maybe it's valid but they don't own it, or it might not be valid AND they may not own it. You do not have to speculate, it's their burden to prove.

Who knows? All you can honestly say is that it is not the ac# your records show, and that you have no records showing the ac # they allege, and that they have failed to show you any proof as to the basis of their claim; even after you requested it.

And for that reason (as well as others) you suspect them and their case as untrustworthy and frivolous.

You can send them discovery as well. Request for production of documents.

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Racecar, AnonAmos & Savoir thank you for your input and help!  Racecar I see from more reading you have helped an awful lot of people, and AnonAmos you have done some good work too for yourself and others.  I have decided to file a request to court for amended answer and sending soon. Makes no sense not too!! Then I will do my interogs & admissions etc and get them out and will wait & see. 

 

What I can't seem to find is a source to find how a consumer serves reply upon the jdb attorneys per state?  I cannot find specifics in the Ma Civil Code or anywhere else.  Don't know if I have to notarize them/  That is not such a big deal because I can just go notarize just in case. 

 

But a big question is the attorneys have listed their law firm, as representing the jdb., and they have listed a 1/2 dozen plus attorneys names from their office.  Does that mean I need to send individually to each one?  Or can I simply address the envelope and the return docs exactly as they have signed their lawsuit?  I have found how to serve a corporation if you are plaintiff (send to corporate officer), but not if you are defendant?  Anyone have an idea of how to find this out?  I know they will grab at any technicality to have my responses thrown out.  Found a free legal hotline to call, hopefully they can help -- but jic anyone has been in this situation, any idea?

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But a big question is the attorneys have listed their law firm, as representing the jdb., and they have listed a 1/2 dozen plus attorneys names from their office.  Does that mean I need to send individually to each one?  Or can I simply address the envelope and the return docs exactly as they have signed their lawsuit?  I have found how to serve a corporation if you are plaintiff (send to corporate officer), but not if you are defendant?  Anyone have an idea of how to find this out?  I know they will grab at any technicality to have my responses thrown out.  Found a free legal hotline to call, hopefully they can help -- but jic anyone has been in this situation, any idea?

 

Someone at their firm should have signed the requests that were sent to you. Send your responses back to them. You should not have to send responses to every attorney at the firm, just the one handling the case.

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Someone at their firm should have signed the requests that were sent to you. Send your responses back to them. You should not have to send responses to every attorney at the firm, just the one handling the case.

I agree, but interestingly there is no way to tell who scribbled the signature over the list of (actually 10 attorneys).  Just me against 10 attorneys ...giminee.

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I agree, but interestingly there is no way to tell who scribbled the signature over the list of (actually 10 attorneys).  Just me against 10 attorneys ...giminee.

 

Is that the same with every document you've received from them, including the complaint?

 

Not sure about MA, but the court website may list the attorney of record on the case.

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Just send it to the law firm address someone will sign for it and that's all you need. Always certified return receipt requested

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