Being sued by Asset Acceptance in Ohio (need help!)

[ohiohio]

Hello everyone, I did a quick google search and found this website, it looks like many people have had success on here, great. I'm from the medical field so anything law is jargan to me. I recently moved back to my parents house, and when I looked in the mail today, I found a letter stating my father was being sued for Asset Acceptance for HOME INSTALLMENT LOANS from 2011. However, according to my father, he states that he wasn’t aware of ANY type of loans and that this must be from a credit card he previously had back from 2006-2009. He states that he didn’t pay it off (he says possibly HSBC) for 2 years and that he owed around ~$2,000. My question is – how do I go about proceeding this? Do I need to hire a lawyer? What exactly is household finance and installment loans that Asset Acceptance is referring to? 

 

1.Who is the named plaintiff in the suit?

 Asset Acceptance, LLC

 

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

 Fulton, Friedman & Gullace, LLP

 

3. How much are you being sued for?

 $12,000

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

 Household Finance (My father states it might be from a credit card, capital 1 or HSBC?)

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

 Received a letter of a complaint that requests that I must prepare a written answer or motion to the plantiff’s attorney or judgment will be made by default

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

 I have not been served yet. Complaint was filed MAY 31, 2013 according to the stamp on the complaint

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

 NO. Not yet served

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?

 Ohio, Franklin County

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

 I don't recall.

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

 3 years (Father states from 2006-2009, then didn’t pay for 2 years)

12. What is the status of your case? Suit served? Motions filed? 

Not yet served. They are awaiting a response to the complaint from me.

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? 

 Didn’t say on the paperwork but I’m assuming soon?

 

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

 

Affidavit of Account

None was attached to the mail.

 

The Complaint Reads as follows:

 

Asset Acceptance, LLC

vs.

ddd333

 

Complaint at Law

 

NOW COMES Plaintiff, ASSET ACCEPTANCE, LLC (“Asset”), by its attourneys, and for its complaint against the above defendant(s), ________, states to this honorable court as follows:

 

1.    Asset is a DELAWARE LIMITED LIABILITY COMPANY registered to do business in the State of Ohio and the Defendant(s) is subject to this court’s jurisdiction (we live in Franklin county though?)

2.    The defendant(s) entered into an agreement for INSTALLMENT LOAN with HOUSEHOLD FINANCE, account number xxxxxxxxxxxxxxxxx.

3.    Asset is now the holder of said account, purchasing the same, and entitled t oall rights as of owner thereof.

4.    The agreement required periodic payments by the defendants(s), which, on this account, defendant(s) failed to make, and is in default.

5.    The amount owing on this account is $12,000 plus accrued interest at the statutory rate from March 15, 2011, plus the cost of this action 

6.    Asset has notified the defendant(s) of the above mentioned account and that the defendant(s) has failed to pay for same.

WHEREFORE, Plantiff prays for a judgment against the defendant(s) for 12,000, plus accrued interest at the statutory rate from march 15, 2011, and costs of this action.

 

Signed by attorney 

 

 

[Spikey]

First thing I would do is see if your county's website has on-line case information. See if you can find out when your answer to the complaint is due. The site is: http://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline/acceptDisclaimer?5rlkba0blk34q

 

Who mailed the complaint by the way? 

[ohiohio]

First thing I would do is see if your county's website has on-line case information. See if you can find out when your answer to the complaint is due. The site is: http://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline/acceptDisclaimer?5rlkba0blk34q

 

Who mailed the complaint by the way? 

 

Thanks for the response, Spikey. I double checked the website: my father does have some openings for other cases but not from asset acceptance. It was mailed from FRANKLIN COUNTY MUNICIPAL COURT, CLERK OF COURT 3RD FLOOR, 375 SOUTH HIGH STREET. COLUMBUS, OHIO 43215. 

 

Any chance that I'll be able to beat Asset Acceptance?

[Spikey]

Very strange, I assume your father will get served soon then.

 

Asset is definitely beatable, it's going to take some work on your part to get there though. The big key is seeing what they have for evidence which is usually sub-par at best.

[Clubchill]

Thanks for the response, Spikey. I double checked the website: my father does have some openings for other cases but not from asset acceptance. It was mailed from FRANKLIN COUNTY MUNICIPAL COURT, CLERK OF COURT 3RD FLOOR, 375 SOUTH HIGH STREET. COLUMBUS, OHIO 43215. 

 

Any chance that I'll be able to beat Asset Acceptance?

I am currently fighting them as well. I Was scared at first.  Thought I had no chance I almost didn't even answer the summons. I figured why bother, I cant win. I have no imcome I am broke etc. who cares . For whatever reason I plug them into google my self and found this place. there are some wonderful people here who gave me the courage to fight these bottomfeeders. . Everyday I would study and get more confident.  I am being sued by the same firm as you. There tatic will be discovery , then they will file  for a summary judgment. You need to fight them every step of the way.  My only advice if its  worth anything is to prepae now. It looks like  I am heading to trial my self.

[ohiohio]

Very strange, I assume your father will get served soon then.

 

Asset is definitely beatable, it's going to take some work on your part to get there though. The big key is seeing what they have for evidence which is usually sub-par at best.

 

I'm pretty sure he'll get served. Spikey, so what is the first step that I need to do? I'm assuming it's to respond to the complaint in writing? Does anyone have a template or how to properly address the things in the summon. Here's a copy of the summons.

[shellieh98]

Couple of things here. The original creditor is household finance, which is HSBC. 12000.00 is a long way from 2000.00, did he have any loans with anyone? Could be the credit card, could be identity theft if he has no knowledge of the account. Discovery should help clear that up, but first we need to figure out if he was served or not.

There is no date for him to respond by in this "letter"? Is it on attorney letterhead, or is it a court document?

Does your state allow you to look up court cases online? If so I would do that and find the status of the case, make sure he didn't get sewer service, and now has a default. If you don't have online look up, go to the court clerk and ask to see the file.

Is your father incapacitated somehow? If he is not, then while you can do the legwork here, he is going to have to learn the rules and show up for court. If he is in anyway incapacitated, you may be able to get durable power of attorney for all legal issues over him, just takes an affidavit, and notary. (That is here in colo., I am assuming ohio would have similar laws, but you would need to find out)

Start reading your rules of civil procedure. Here is your rule about service of the summons.

RULE 4. Process: Summons

(A) Summons: issuance. Upon the filing of the complaint the clerk shall forthwith issue a summons for service upon each defendant listed in the caption. Upon request of the plaintiff separate or additional summons shall issue at any time against any defendant.

( Summons: form; copy of complaint. The summons shall be signed by the clerk, contain the name and address of the court and the names and addresses of the parties, be directed to the defendant, state the name and address of the plaintiff's attorney, if any, otherwise the plaintiff's address, and the times within which these rules or any statutory provision require the defendant to appear and defend, and shall notify the defendant that in case of failure to do so, judgment by default will be rendered against the defendant for the relief demanded in the complaint. Where there are multiple plaintiffs or multiple defendants, or both, the summons may contain, in lieu of the names and addresses of all parties, the name of the first party on each side and the name and address of the party to be served.

A copy of the complaint shall be attached to each summons. The plaintiff shall furnish the clerk with sufficient copies.

© Summons: plaintiff and defendant defined. For the purpose of issuance and service of summons "plaintiff" shall include any party seeking the issuance and service of summons, and "defendant" shall include any party upon whom service of summons is sought.

(D) Waiver of service of summons. Service of summons may be waived in writing by any person entitled thereto under Rule 4.2 who is at least eighteen years of age and not under disability.

(E) Summons: time limit for service. If a service of the summons and complaint is not made upon a defendant within six months after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion. This division shall not apply to out-of- state service pursuant to Rule 4.3 or to service in a foreign country pursuant to Rule 4.5.

(F) Summons: revivor of dormant judgment. Upon the filing of a motion to revive a dormant judgment the clerk shall forthwith issue a summons for service upon each judgment debtor. The summons, with a copy of the motion attached, shall be in the same form and served in the same manner as provided in these rules for service of summons with complaint attached, shall command the judgment debtor to serve and file a response to the motion within the same time as provided by these rules for service and filing of an answer to a complaint, and shall notify the judgment debtor that in case of failure to respond the judgment will be revived.

[Effective: July 1, 1970; amended effective July 1, 1971; July 1, 1973; July 1, 1975; July 1, 1984; amended effective July 1, 2008.]

So the first thing I would do is check the court file. If there is nothing in there, wait and study for when you are served. If they do not serve you within 6 months, they have to start all over. Looks like they have until dec. 1 st to get the job done.

If his file shows they served him and he failed to answer, causing a default judgement, he would need to file a motion to vacate ASAP for lack of service.

[shellieh98]

Ok that's not a letter but a summons, I would answer it, mail one to the plaintiff, and take one to the court. He has been served, they served him by mail

Let's look at your rules and see what is required for your answer

[shellieh98]

http://www.supremecourt.ohio.gov/LegalResources/Rules/civil/CivilProcedure.pdf

Here are your rules.

He will need to respond to each number 1-6 with a denial and reason for denial. If he does not know, then he puts what is written below in your rules and it has the same effect as a denial. He has 28 days to answer from the date on the summons.

( Defenses; Form of denials. A party shall state in short and plain terms the party's defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If the party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part of a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, the pleader may make the denials as specific denials or designated averments or paragraphs, or the pleader may generally deny all the averments except the designated averments or paragraphs as the pleader expressly admits; but, when the pleader does intend to controvert all its averments, including averments of the grounds upon which the court's jurisdiction depends, the pleader may do so by general denial subject to the obligations set forth in Civ. R. 11.

© 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, want of consideration for a negotiable instrument, 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, 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.

[shellieh98]

Post the complaint too, take out identifying info. He will also have to file a certificate of service with the court with his answer

[ohiohio]

Post the complaint too, take out identifying info. He will also have to file a certificate of service with the court with his answer

 

Thank you guys for the response - you guys are awsome.

 

I attached the complaint to this posting.

 

I think you nailed it, Shellieh, for my first step of action. I just got off the phone with my lawyer friend who has been practicing for a while and he says that the FIRST thing I must do is respond to the complaint with a WRITTEN DENIAL (which you provided I think), DENYING everything (the charges, etc) and sending that immediately in to the court. I asked the lawyer why the case doesn't appear online yet and he says that it takes some time usually for it to show online, but if there is a CASE # on the summons then I have been served. 

 

He also stated that when I return the written denial that I must send it VIA certified mail and require signature as this will provide proof that they received it in case Asset Acceptance tries to say "they never received it" to save my a$$.

 

So basically at this point -- I send in the written denial (which I will do tomorrow morning), and do I wait for their response? My friend lawyer said they have to provide some type of proof that you indeed owe this $12k. If I deny the charges, what would I expect next in the mail from the court? 

 

As far as the loans, I am not sure if he has any loans with anyone else. I just had asked him what other CC/banking he had and he stated HSBC. I didn't know HSBC was household finance!

 

Thanks all for the help.

[debtzapper]

There is a long thread here by Ohio Lawsuit.  She won.  If you can find it, you may find it useful.  And if she could respond herself, that would be even better.

[debtzapper]

You can go pro se or, if you want, consult a consumer lawyer.  I know Greg Reichenbach through a listserv.

 

http://www.reichenbachlaw.com/

 

A consultation is free.

[debtzapper]

http://www.lexology.com/library/detail.aspx?g=fa523e94-3158-4858-ab83-1c5f34201cef

 

 

A leading Ohio debt collection case, where defendant won.

[ohiohio]

Someone suggested I file a motion instead of pleading since I did not receive any affidavits, account statements, or signed contracts. Would filing a motion be preferred vs filing for denial?

[ohiohio]

http://www.lexology.com/library/detail.aspx?g=fa523e94-3158-4858-ab83-1c5f34201cef

 

 

A leading Ohio debt collection case, where defendant won.

 

Thank you for the read ! Pretty much if they can't support what you owe, you win !

[debtzapper]

I think per  Ohio Rule 10 (d) (1), they should have provided more accounting statements.  See my earlier case.  Also, per the rule, I think you have to file a Motion for A More Definitive Statement prior to asserting affirmative defenses, in order to get them to comply with the rule.  But someone else may have other thoughts....

[ohiohio]

Anyone else have thoughts for filing a motion in this case vs. writing a denial? Thanks!

[Public Enemy]

Get online and get a copy of your dad's credit report and see what it says.

 

You can get a copy of his credit report for free, once per year, at AnnualCreditReport.com

[BV80]

Is this in small claims court?   If so, you need to see if that court has specific rules.  Sometimes superior or supreme court rules don't apply to small claims.

[ohiohio]

Is this in small claims court?   If so, you need to see if that court has specific rules.  Sometimes superior or supreme court rules don't apply to small claims.

 

Is it says Franklin Municipal Court - not sure if that is small claims court or not.

[BV80]

@ohiohio

 

Call your clerk of court and find out.  You need to make sure you follow the rules that apply to your court.  Also, if the JDB were to win a summary judgment, it might help ifyou find out to which appeals court you would appeal.  It has to do with finding case law.

 

Here's a couple of OH debt buyer cases for you to read.  I don't know if they come from your appeals court or not.  However, pay attention to the issues addressed by the courts.

 

http://scholar.google.com/scholar_case?case=1612348098549820778&q=%22Midland+Funding%22&hl=en&as_sdt=4,36

 

(Note paragraph 24 in the above:

 

{¶ 24} We find a similar result is warranted in the case sub judice. In other words, although appellee herein attached (1) the affidavit from Ms. Haag generally averring that the HSBC Bank Nevada N.A. account no. xxxx-xxxx-xxxx-4894 had been assigned to appellee, (2) copies of several credit card statements showing purchases and payments on account no. xxxx-xxxx-xxxx-4894, and (3) the one-page bill of sale between HSBC Card Services and Appellee Midland from May 28, 2009, we hold there was insufficient information to enable the trial court to determine as a matter of law that account no. xxxx-xxxx-xxxx-4894 was actually included in the group of accounts affected by the bill of sale and thus duly assigned to appellee for purposes of summary judgment.

 

 

http://scholar.google.com/scholar_case?case=1380328750242926109&q=%22Asset+Acceptance%22&hl=en&as_sdt=4,36

[Clubchill]

@ohiohio

 

Call your clerk of court and find out.  You need to make sure you follow the rules that apply to your court.  Also, if the JDB were to win a summary judgment, it might help ifyou find out to which appeals court you would appeal.  It has to do with finding case law.

 

Here's a couple of OH debt buyer cases for you to read.  I don't know if they come from your appeals court or not.  However, pay attention to the issues addressed by the courts.

 

http://scholar.google.com/scholar_case?case=1612348098549820778&q=%22Midland+Funding%22&hl=en&as_sdt=4,36

 

(Note paragraph 24 in the above:

 

{¶ 24} We find a similar result is warranted in the case sub judice. In other words, although appellee herein attached (1) the affidavit from Ms. Haag generally averring that the HSBC Bank Nevada N.A. account no. xxxx-xxxx-xxxx-4894 had been assigned to appellee, (2) copies of several credit card statements showing purchases and payments on account no. xxxx-xxxx-xxxx-4894, and (3) the one-page bill of sale between HSBC Card Services and Appellee Midland from May 28, 2009, we hold there was insufficient information to enable the trial court to determine as a matter of law that account no. xxxx-xxxx-xxxx-4894 was actually included in the group of accounts affected by the bill of sale and thus duly assigned to appellee for purposes of summary judgment.

 

 

http://scholar.google.com/scholar_case?case=1380328750242926109&q=%22Asset+Acceptance%22&hl=en&as_sdt=4,36

 

 

Great case ,  thanks for sharing

[ohiohio]

Hi guys,

 

I started writing my denial -- I used a template that I found on here and inserted it with my information, however, I'm not sure if the parts in red are necessary. Is a simple "DENIES" good enough or do I need to back it up with something? I'm not very good at writing these things so any formatting or proper usage of language would help! 

 

@shellieh98

@nobk4me

@bv80 

[shellieh98]

They never really gave you a cause of action.  They just said you opened an account, was supposed to make monthly payments, and didn't pay.  Now you owe.    I cant find anything like open book account, money lent and recieved, account stated, breech of contract, etc.  That is why I thought others could weigh in on a more definitive statement from them.  I haven't had time to search out a more definitive statement to give you advice on this, I will if I have some time in the next day or 2, but working alot right now.

 

But in answer to your question, in your rules I posted it says you can do a general denial where you would put something like I deny all allegations 1-6 and any others not expressly written, or you could do each one.  I would do each one individual personally as that is what it told you to do before it says you could do the general.  But remember you need to put why you deny in either case like "defendant is without knowledge or information sufficient to form a belief as to the truth of an averment, therefore denies" in your denial.

 

BTW, I would not put admit to number 1.  If you have never heard of that company before, how do you know it is what it is? I would put you are without knowledge or information ..........................  Only admit to things like your name if it is correct, and address if it is correct.

 

You do have to send a verification that you served the plaintiff to the court, and you should send it to the plaintiff certified mail return recipt requested.  File the papers in person to the court, don't mail.