sbal

Summoned and Husband is Overseas + More

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Sued by: Midland Funding via Target

Amount: $5617.36 (charged off with Target at $3500.00)

Current state: Arizona

 

I was summoned yesterday and was told that my husband would have to appear in court also (unless he's active duty military).  He used to be military and now works as a contractor overseas and I only see him 4 times a year for 1 month at a time.  What's going to happen?  He's NOT able to come home unless it's within his approved days.  

 

This debt was charged off before we married.  Does that make a difference?
Update: Searching through, I've figured out this answer.  It doesn't matter when the debt happened, the state is going after both of us.

 

Also, I'm looking into the Discovery Process.  From what I understand, it's asking them to produce documentation that they own the debt.  I've heard they rarely have all the needed paperwork and the case gets dropped.  Do I ask for this in my answer letter or is that separate?

 

In the event of the case getting dropped... does that mean that the lawsuit is over and I no longer have to pay or just that the lawsuit is dropped?  With my husband working overseas, paying this off was our goal come December.  I'm not looking to get out of the defaulted loan - just the lawsuit.

 

Thanks in advance! 

Edited by sbal

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"From what I understand, it's asking them to produce documentation that they own the debt.  I've heard they rarely have all the needed paperwork and the case gets dropped.  Do I ask for this in my answer letter or is that separate?"

 

Discovery is separate from your answer.  If you do not properly serve them with discovery they do not have to comply.  The first thing you need to do is study up on your rules of civil procedure for AZ Justice Court.

 

I would also consult a consumer attorney.  You cannot represent your husband and if he cannot appear then you will have to hire a lawyer to represent both of you.

 

"Rarely has the paperwork" applies to junk debt buyers of defaulted credit card debt.  If this is a loan and the original lender is suing you then they probably have everything they need to prove the debt. 

 

"In the event of the case getting dropped... does that mean that the lawsuit is over and I no longer have to pay or just that the lawsuit is dropped?"

 

Depends on HOW it is dropped.  If it is dismissed without prejudice they can refile again until the SOL expires.  If it is dismissed WITH prejudice they cannot refile and you do not have to pay.  If it is a mutual walk away then they may not sue again but it doesn't mean they won't sell the debt to someone else who will try to collect.

 

"With my husband working overseas, paying this off was our goal come December.  I'm not looking to get out of the defaulted loan - just the lawsuit."

 

If the trial is not until after December you stand a chance of settling this out of court.  However, they are not going to withdraw the suit hoping that you actually do pay in December.

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Are you AND you husband both named as defendants?

 

What did they attach with the complaint? 

His name is John Doe on the paperwork.  But when I got served, the guy asked for his name and I gave it... not my smartest move but I can't take it back now.

 

They sent (2 copies) over: the Summons and an Affidavit.  The Summons has my name + John Doe and the Affidavit only has my name.

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If it was already charged off before you were married, he shouldn't be pulled in, it did not benefit the martial community. I would have him (you) answer his part with a motion to dismiss, then you can go it alone.

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If you want to get a free legal consultation try www.westcoastlitigation.com  They have offices throughout Calf and also in Phoenix, AZ

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Two possibilities come to mind.  First, your husband can file an answer.  You can prepare it, fax it to him for a signature and have him MAIL the original signed answer back for you to file with the court.  Make two copies when you get it back from him.  You keep one copy and the other gets sent to the plaintiff.  It may also be appropriate for him to file motion to stay proceedings against him until such and such date when he will be back in the states.  You can also have him try to get himself dismissed via fax/mail (see the third paragraph below), but the mailing back and forth might turn into a mess with the deadlines and whatnot.
 
The other thing I wondered about is getting a special power of attorney giving you the authority to act as his agent for any matters related to this lawsuit.  I know very little about how this works and whether it would even apply to appearing and defending in a lawsuit, so if you think you want to go this route, I would strongly recommend talking to a lawyer before doing anything in this regard.
 
Arizona is a community property state.  The community property statutes extend to debts as well.  If this was your debt alone BEFORE you were married, and you never made any purchases using the card AFTER you were married, your husband is not a proper party to the lawsuit.  They cannot take from him to repay a debt that he never incurred nor benefited from.
 
Did Midland allege when the account went into default?  If not, it's going to be tricky, but you're going to have to maintain denial of the debt while your husband asserts that you got married after the debt defaulted.  He would file a "Motion to Dismiss as to Defendant [your husband's name here]".  In it, he should say something like this: "Defendant, [your husband's name here], is presently married to Defendant [your name here], however Mr. [your last name] denies owing a debt to Plaintiff and denies ever opening, using or benefiting from any debt that may have been incurred to non-party Target National Bank.  Furthermore, Defendant [your husband's name here] asserts that any debt that may have ever been owed by Defendant [your name here] would have been incurred and defaulted on prior to the date upon which Defendants became married and thus any such debt is not a community debt.  For the reasons stated herein, Defendant, [your husband's name here], is not a proper party to this lawsuit."  Something like that.  An affidavit swearing to the facts in the motion is a great idea.  Its kind of throwing you under the bus, but you really want to get him dismissed because if he remains a party, they can garnish his wages, levy his bank accounts and put a lien on any separate property he may have.
 
 
Just had an afterthought....  Did you tell the process server that your husband was out of the country?  In regards to service of persons located in a foreign country, the Justice Court Rules of Civil Procedure refer to the Arizona Rules of Civil Procedure, which says the party has to be personally served in that countryRule 4.2(i)  I don't know what, if any, obligation this places on the process server (seems to me if he knows your husband is out of the country the server cannot certify your husband was personally served at your address), but you may end up having to prepare an affidavit stating that your husband is out of the country and pursuant to the rules of procedure, he was not properly served (you verbally telling him about the lawsuit is not proper service and you can't serve him because you're not a process server).

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"Rarely has the paperwork" applies to junk debt buyers of defaulted credit card debt.  If this is a loan and the original lender is suing you then they probably have everything they need to prove the debt.

Well, it's Midland suing on a Target credit card, so....

 

Yep, the "rarely has the paperwork" applies here.

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If it was already charged off before you were married, he shouldn't be pulled in, it did not benefit the martial community. I would have him (you) answer his part with a motion to dismiss, then you can go it alone.

He has to sign anything with his name on it and it has to be an original signature (the clerks actually rub their finger over the signature to make sure it's an original).

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Well, it's Midland suing on a Target credit card, so....

 

Yep, the "rarely has the paperwork" applies here.

 

Well the OP said this in their post:  "I'm not looking to get out of the defaulted loan - just the lawsuit."

 

which indicated to me this was a LOAN not a CC.

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Well the OP said this in their post:  "I'm not looking to get out of the defaulted loan - just the lawsuit."

 

which indicated to me this was a LOAN not a CC.

 

 

I would have (and did) put a lot more weight on this:

 

 

Sued by: Midland Funding via Target

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Two possibilities come to mind.  First, your husband can file an answer.  You can prepare it, fax it to him for a signature and have him MAIL the original signed answer back for you to file with the court.  Make two copies when you get it back from him.  You keep one copy and the other gets sent to the plaintiff.  It may also be appropriate for him to file motion to stay proceedings against him until such and such date when he will be back in the states.  You can also have him try to get himself dismissed via fax/mail (see the third paragraph below), but the mailing back and forth might turn into a mess with the deadlines and whatnot.

 

The other thing I wondered about is getting a special power of attorney giving you the authority to act as his agent for any matters related to this lawsuit.  I know very little about how this works and whether it would even apply to appearing and defending in a lawsuit, so if you think you want to go this route, I would strongly recommend talking to a lawyer before doing anything in this regard.

 

Arizona is a community property state.  The community property statutes extend to debts as well.  If this was your debt alone BEFORE you were married, and you never made any purchases using the card AFTER you were married, your husband is not a proper party to the lawsuit.  They cannot take from him to repay a debt that he never incurred nor benefited from.

 

Did Midland allege when the account went into default?  If not, it's going to be tricky, but you're going to have to maintain denial of the debt while your husband asserts that you got married after the debt defaulted.  He would file a "Motion to Dismiss as to Defendant [your husband's name here]".  In it, he should say something like this: "Defendant, [your husband's name here], is presently married to Defendant [your name here], however Mr. [your last name] denies owing a debt to Plaintiff and denies ever opening, using or benefiting from any debt that may have been incurred to non-party Target National Bank.  Furthermore, Defendant [your husband's name here] asserts that any debt that may have ever been owed by Defendant [your name here] would have been incurred and defaulted on prior to the date upon which Defendants became married and thus any such debt is not a community debt.  For the reasons stated herein, Defendant, [your husband's name here], is not a proper party to this lawsuit."  Something like that.  An affidavit swearing to the facts in the motion is a great idea.  Its kind of throwing you under the bus, but you really want to get him dismissed because if he remains a party, they can garnish his wages, levy his bank accounts and put a lien on any separate property he may have.

 

 

Just had an afterthought....  Did you tell the process server that your husband was out of the country?  In regards to service of persons located in a foreign country, the Justice Court Rules of Civil Procedure refer to the Arizona Rules of Civil Procedure, which says the party has to be personally served in that countryRule 4.2(i)  I don't know what, if any, obligation this places on the process server (seems to me if he knows your husband is out of the country the server cannot certify your husband was personally served at your address), but you may end up having to prepare an affidavit stating that your husband is out of the country and pursuant to the rules of procedure, he was not properly served (you verbally telling him about the lawsuit is not proper service and you can't serve him because you're not a process server).

 

Thanks for all of the wonderful advice!

 

I don't mind being thrown under the bus - it's my problem.  It is what it is.

You've given me alot to think about, now I just need to digest it. :)

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I believe the Soldier and Sailor relief act applies here as DoD contractors are also covered under this. I know this is probably late but it may help along the road for others. That would stay it until the husband returns.

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