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Summons Received - Will fight til death


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Hello all!

 

 

 

I have read a ton of blogs in these forums and only now posting to request specific help with my case - primarily from Coltfan1972 since I am from AR and he is familiar with bottom feeder Ste**en P. L**b (thy ol’ punching bag).

 

 

***The Guts***

 

(Only vague info given here but please answer simplified questions – Summons, Complaint, and Affidavit will be posted next along with all my submissions)

 

 

 

I received a Summons on December 6th, 2013 which stated I had 30 days to reply an answer to the clerk of the court and said bottom feeder which also contained a complaint along with an affidavit and statement. So, with the help of this forum’s website I answered the complaint on the 3rd to last day Jan. 2nd 2014, to the clerk of the court and sent douche bag a copy, cert mail, with an “answer to the complaint” and “motion to strike affidavit”. On Jan. 6th, 2014 I sent the court and douche bag a “request for docs”, cert. mail, under rule 34.

 

 

 

***Location: W**t M***his, AR***

 

 

 

***Generic Questions – detailed stuff in next post***

 

 

 

I found everything regarding the timing of actions required by each party but is there a flow chart of action to when these items need to be filled with the court?

 

 

 

For example, did I mess up by sending the motion to strike affidavit with the answer to complaint?

 

 

 

Was it too early to ask for discovery?

 

 

 

How am I notified of a trial date?

 

 

 

Clerk of the court said civil cases never go to trial? WTF does that mean?

 

 

Am I allowed to modify already filled motions or affirmative defenses?

 

 

***I know you don’t have all the details yet – we can cover that next post when I give you the actual information. But please answer generic questions if you can help. In the meantime I'll type up the complaint and crap.Thank you.***

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I'm not familiar with AZ Civil Procedure and I'm not sure it will help your case but, I feel that the information I'm posting is pertinent to your expectations.

Coltfan1972 has been banned from this forum and won't be posting to your thread.

His posts are still relevant however, if read with an eye critical to his flamboyant personality.

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Unfortunately, Coltfan does not really post here anymore. I think the Motion to strike affidavit is in good time. Right out of the gate you sent request for documents which was good. The strategy is to push the discovery, send out interrogatories and to get admissions out also as well as the required disclosures.

 

In your answer, was it a general denial, or did you assert affirmative defenses? So as far as timeline goes You are a little behind in discovery but have some time before they file for Summary Judgment.

 

As far getting them to go away early, that dog just won't hunt. The strategy of other states will help you to win so I wouldn't count out every one wishing to post. Sometimes on here a mention of one thing triggers us to look at things differently. I do not think many from AR still post here, but we can help.

 

So let's hope for a win, and still be happy with a dismissal. 

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How am I notified of a trial date?

 

Clerk of the court said civil cases never go to trial? WTF does that mean?

 

Am I allowed to modify already filled motions or affirmative defenses?

 

The one word of caution I would give is DO NOT sit at home waiting for notification of a trial date.  Once you know you have been sued and have been served I would be checking the court website weekly on Friday afternoons to make sure nothing has transpired in the case.  The LAST thing you want is for a decision to be made or something happen that you didn't know about because some notification NEVER reached you.

 

I believe AR civil court allows you to register for email notifications of case updates.  Check into that as a safety net.

 

The clerk is wrong.  You cannot rely on court clerks for legal information.  First they are NOT supposed to give it out and second they can be wrong.  Civil cases go to trial EVERY day (divorce is civil and so is small claims court) I have no idea what she was referring to but you need to be planning on how to defend in case they do not fold their tents and retreat.

 

Whether or not you can modify motions and answers that have been filed will depend on your state laws and court's rules of civil procedure.  You need to start researching those NOW with the court and make sure you know them in and out.  Pay particular attention to dates.  Some courts only allow amended filings for a specified time period.  

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Thank you, Savoir, Seadragon, and Clydesmom for your information - hopefully you can help me even more later today when I have time to post the actual details of the case.

 

You are correct Savoir, I regret some of the things I stated in the previous post but everyone please forgive me for it was 4 am and I should have just gone to bed - I apologize. Knowing Coltfan is gone, I will take any and all help available. I only say that because of his experience with douche bag jdb.

 

I have been studying the AR civil pro - but I do have one question:

 

It appears there is a difference between district court civil pro and regular civil pro? I know that doesn’t even make sense. I will get some screen shots and show you what I mean.

 

To the comment, which is my biggest fear of the whole thing, on summary judgment - will I not be notified by cert mail of this motion?

 

In a couple of hours I will post everything filed show far and what my plan would be next - but you guys are clever smart so I look forward to seeing your responses and strategies of next steps.

 

Thank you in advance for your assistance!

 

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You are correct Savoir, I regret some of the things I stated in the previous post but everyone please forgive me for it was 4 am and I should have just gone to bed - I apologize. 

 

You can always use the edit button and take out the statement. Some here might just pass on your thread when they read it. The most helpful advice I have received here came from posters not familiar with my state's legal procedures. 

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The thing about the clerk saying civil cases never go to trial - that raises a red flag to me.  It suggests that the court expects parties to settle, and may exert pressure on you to settle.  Some of these courts are not exactly neutral.  Some of them are biased in favor of creditors, and against alleged debtors and pro se's.

 

It also suggests that this court grants summary judgments so as to avoid a trial.  Trials are work, and some of these judges are on the gravy train, collecting a hefty salary without doing much work, and they want things to stay that way. 

 

Yes, the clerk could be full of BS, but I suspect the comment was accurate and a reflection of how this court does business, which is badly for debtors.

 

I would look into the arbitration strategy.  In my experience, it's the best way to get out of a railroad court.

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If they didn't attach the agreement (signed or unsigned) to the original complaint when they filed you could try for a motion to dismiss based on failure to comply with Arkansas Rules of Civil Procedure (10)d.  The Judge will most likely let them "fix" the lacking, but you will make them work more.

 

The Supreme Court held that compliance with Rule 10(d) is mandatory and that pursuant to the Rule, any written instrument upon which a claim is based must be attached as an exhibit to a Complaint. LVNV Funding, LLC v. Rae Nardi, 2012 Ark. 460 (Ark. 2012). (emphasis added).

 

Post more information and I will help where I can.

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If they didn't attach the agreement (signed or unsigned) to the original complaint when they filed you could try for a motion to dismiss based on failure to comply with Arkansas Rules of Civil Procedure (10)d.  The Judge will most likely let them "fix" the lacking, but you will make them work more.

 

Post more information and I will help where I can.

Thanks, Mantis Knight.  I knew that an experienced ARKANSAS member would respond.

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For what it's worth, although Coltfan is no longer on the board, I just beat my MSJ the other day, and reading (again) his thread on standing was very motivational the night before the hearing.  I won my MSJ because I did a good job of arguing that their hearsay business records should not be admitted, which Coltfan elucidates nicely.  Gone but not forgotten and definitely useful.

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Finally, I repaired my printer/scanner and now have all of the documents loaded.

 

***Please note***

I have already filed the answer to complaint, motion to strike, and requests for documents. However, since finding this site I regret not have doing the research sooner since I feel all of my documents filed could and would have been better with all your comments.

Also, anywhere you see $ assume 10k

 

***Questions***

  1. Am I allowed to re-submit or edited filed documents? Do you feel it is necessary?
  2. What agreement should I see attached to the complaint?
  3. These are the only documents received from the plaintiffs, where does it explain what laws were offended and how this law firm is involved?
  4. Does anyone know (or have experience with) Capital One Bank (USA) NA versus Capital One Services LLC?
  5. What is up with the bar code and blacked out text above poop heads name on the Affidavit?
  6. I believe this Consent Judgment is a trap!? I would never agree to a debt that’s not mine – hell that’s why we are here. I am getting ready to research it now but I am guessing if I do not reply (or tell them to go F themselves) within 7 days they will file for MSJ. Any advice on this one?
  7. Also, They received my request for documents on the 8th. They dated the Consent Judgment on the 8th (probably because they received req. for docs.) but it is post marked on the 9th with me receiving it on the 11th. Fishy?
  8. When and how do I get to explain my defense? Seems like they can just file for MSJ anytime but when must they respond to my requests?   

Summons complaint affidavit answers etc.pdf

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After reading your last post the best thing for you to do it to answer these questions. Based on your questions and your name most here assumed you were dealing with a JDB. You are dealing with the OC (original creditor) and will need to approach things differently. It is much harder to fight an OC, so you will need to work even harder. Answering these questions will help others help you. 

 

1. Who is the named plaintiff in the suit?

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

3. How much are you being sued for?

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

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

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

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

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?

9. What state and county do you live in?

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

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

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).

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

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.

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? 

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

17. Read this article: 

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After reading your last post the best thing for you to do it to answer these questions. Based on your questions and your name most here assumed you were dealing with a JDB. You are dealing with the OC (original creditor) and will need to approach things differently. It is much harder to fight an OC, so you will need to work even harder. Answering these questions will help others help you. 

 

1. Who is the named plaintiff in the suit?

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

3. How much are you being sued for?

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

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

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

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

 

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?

9. What state and county do you live in?

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

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

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).

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

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.

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? 

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

17. Read this article: 

 

In no way am I trying to be rude or disrespectful but the answer to almost all of these questions were attached in my last post or my first post. I appreciate any help and if you have any direct questions I will do my best to answer them.

Thanks.

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In no way am I trying to be rude or disrespectful but the answer to almost all of these questions were attached in my last post or my first post. I appreciate any help and if you have any direct questions I will do my best to answer them.

Thanks.

 

Do what you want, but its your money and reputation on the line. I don't think you realize how bad of a situation you are in since no one realized up until now that you are dealing with an OC. You are going to need to approach things differently because of this.

 

Answering the questions above is what many do when they come here and it makes it much easier for others to help you. People here are helping you for free. If you want someone to work for you hire an attorney.  

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Do what you want, but its your money and reputation on the line. I don't think you realize how bad of a situation you are in since no one realized up until now that you are dealing with an OC. You are going to need to approach things differently because of this.

 

Answering the questions above is what many do when they come here and it makes it much easier for others to help you. People here are helping you for free. If you want someone to work for you hire an attorney.  

 

I did not realize when I first read your post that this was the preferred template in which members use for providing assistance. I was thinking the attachment of the case file would be most helpful but I am new to all this. I apologize and in no way was I insinuating I want members and users to do my work for me. I will fill out the questions right away. Thank you for your assistance.

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Am I allowed to re-submit or edited filed documents? Do you feel it is necessary?

Yes.  You can amend your filings and are probably going to have to.  You cannot respond to an original creditor suing you the exact same way that you would a junk debt buyer.  An OC lawsuit is a very different defense.

 

What agreement should I see attached to the complaint?

All they have to show to the court is that you opened an account, used it, stopped paying, and the balance owed.

 

These are the only documents received from the plaintiffs, where does it explain what laws were offended and how this law firm is involved?

This is a civil suit.  They are alleging that you breached the contract not broke the law.  Account stated is a valid reason to sue you and one that an OC can use VERY easily.  The law firm is the attorney of record for the plaintiff.  

 

Does anyone know (or have experience with) Capital One Bank (USA) NA versus Capital One Services LLC?

They are the same entity.  The Services division handles their litigation and collections.  You are being sued by the original creditor.

 

What is up with the bar code and blacked out text above poop heads name on the Affidavit?

Some courts now use electronic documents.  They now scan bar codes to upload them to the system.  DO NOT waste time on this.

 

I believe this Consent Judgment is a trap!? I would never agree to a debt that’s not mine – hell that’s why we are here. I am getting ready to research it now but I am guessing if I do not reply (or tell them to go F themselves) within 7 days they will file for MSJ. Any advice on this one?

The consent judgment is nothing more than an offer to settle.  Some creditors offer this as a fast track to settle a case.  What it means is if you sign and agree to make the payments and do so fulfilling the settlement the debt is taken care of and the suit withdrawn without prejudice.  However, if you default on the payments they do not have to sue you as you have agreed to a judgment.  They can simply return to court with the consent judgment and garnish wages/bank accounts and put liens on property you own.  It isn't a trap as you are free to reject their offer.

 

Also, They received my request for documents on the 8th. They dated the Consent Judgment on the 8th (probably because they received req. for docs.) but it is post marked on the 9th with me receiving it on the 11th. Fishy?

 

No.  Most likely their letter was typed on the 8th and signed then mailed the next day when picked up.  How long your post office takes is a different issue and has nothing to do with the the firm.  You sent your request for documents and the office received it but yours is not the only case they are working on.  It goes in the stack of "handle this" matters along with hundreds of others.  There is no conspiracy here.  Not to mention your request is deficient since you demanded proof of assignment when there is none.  When an OC is suing you there is NO assignment.

 

When and how do I get to explain my defense? Seems like they can just file for MSJ anytime but when must they respond to my requests?   

At trial is where you get to present your defense and based on what I read you had better come up with one.  This is NOT a JDB and the defenses you asserted are used in JDB cases NOT OC.   This is one time you should NOT have followed Coltfan.  His defenses are for JDBs not OCs.  An OC lawsuit is much more difficult to defend because they can attest to their own records.  There is no chain of custody or assignment issue.  

 

They can file a MSJ at anytime and support it and answer your demand for documents at the same time.  Careful what you ask for.

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