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complaint filed without notice?


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Hello and thank you for this opportunity
I just found out from an advertisement letter from a law firm that a collection agency filed a lawsuit under rule 3.740 to collect a credit card debt.
I did some research online and found out that the lawsuit was filed about ten days ago.
I think that the debt is older than 4 years (I'm in California) but I have no idea about the amount or the original creditor
I do not recall any lawsuit mentioned in any correspondence but, as you can imagine , in 4+ years I have got a lot of letters about it. At some point stopped paying attention- I know- my fault but it is very depressing...
What is the next step?
how can I find out about the validity , amount and the original creditor- last payment date for the SOL....
There is no deposition available on the court web site.
I don't have a clue what I'm talking about either- sorry- this may be way off base.
Please help

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The next step is you are served with a summons regarding the case.  You can wait for the process server or you can go down to the court and be served personally there.  Once you are served you will get copies of the complaint (lawsuit) they filed and then can begin the discovery process.  The complaint will list who the Plaintiff is and if they are an assignee of the debt then the original creditor as well.  

 

Once you know who is suing you for how much you can begin the process of answering the suit and formatting a defense.

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I travel a lot and it's going to be difficult for them to serve me. I think. Is there any advantge in ducking the summons and stretching the process?

Can I request the statement of witnesses and evidence before I get the summons? So when they realize they can't properly validate the claim and/or it's past the SOL they won't follow through?

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They can request an alternate service from the court which will suffice.  You will only be prolonging the inevitable.  The actual trial will be a year or more away due to the backlog in CA courts.  You may as well get served.

 

You cannot do discovery until you are properly served.  The chances on them backing off are slim to none.  They do not care if they can validate.  If they can convince the court is it valid you will pay.  If it is past the SOL you have an affirmative defense but you have to actually raise that issue with the court.

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  • 1 month later...

Thank you and an update:

Following friends advise I went to the court and obtained a copy of the filing (anonimously)

I looked at the complaint and it states that the debt went into default on July2, 2010

The filing date is July3, 2014. The debt collection filing limit in California is 4 years

So here is the question:

Was the filing too late? By 1 day? can I file for dismissal?

Thanks again!!!

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  • 4 weeks later...

OK another question:

I have an option to hire an attorney to file a motion to demur based on the SOL, insufficient proof of debt ownership. That will cost me about $1500-2000. I went to a free legal clinic in town and to the self help department in the court house and I was told that I can also use the supplied form and file an affirmative defense answer to the filing that brings up the same issues with the lawsuit (SOL, proof of debt ownership). They were nice enough and would look it over at the court and tell me if it's done correctly as well before I file.

Since I am a bit strained financially I'd rather do the latter. But if there are major advantages and the chance to have it dismissed are far greater with the motion to demur I could come up with the money.

Can you please advise?

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The court will not grant a motion to demur based on SOL or proof of debt ownership (standing). A demur is for procedural errors or wrong venue etc. Claims of lack of standing or SOL are things that would have to be proven, and the court would allow either side an opportunity to do so before it would simply dismiss.

 

I would save your money and answer the complaint yourself, and assert the SOL as an affirmative defense. Learn how to fight it and conduct discovery (you can start with a BOP).

 

Read Homelessincalifornia, String, and ASTMedics threads and learn how to fight it. SOL is an affirmative defense, which requires a trier of fact to weigh evidence. The court will not simply dismiss a case just because someone says the SOL has run (at least not in the answering stage of litigation).

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Thank you and an update:

Following friends advise I went to the court and obtained a copy of the filing (anonimously)

I looked at the complaint and

You made this post on Aug 20 and it sounds like this is going to be the day you were considered served for this action (since you received the complaint). That would most likely mean you have 30 days to answer from Aug 20, in other words; the answer was due today (unless I'm missing something here). It looks like you need to file the answer (and asserting: Time barred by the running of the SOL, as an affirmative defense) tomorrow or ASAP.

 

Maybe @BV80 can move your thread to the legal forum where you will be better served, most of the people here missed this thread.

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You made this post on Aug 20 and it sounds like this is going to be the day you were considered served for this action (since you received the complaint). That would most likely mean you have 30 days to answer from Aug 20, in other words; the answer was due today (unless I'm missing something here). It looks like you need to file the answer (and asserting: Time barred by the running of the SOL, as an affirmative defense) tomorrow or ASAP.

 

Maybe @BV80 can move your thread to the legal forum where you will be better served, most of the people here missed this thread.

I have not been served as of today. I've been checking the litigation status online and the application for due diligence is the last entry on August 3. There is not shown ruling on that and there are no past or future events shown either.Unless I'm missing something ....

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I will thank you!!!

Today I received the complaint by mail- I guess I've been served.

There are four counts of cause of action

First is a breach of contract, second is account stated, third is open book account and the fourth is indebtedness.

I will read up and follow the guidelines for the answer thank you.

I will also post the progress so others that have the same situation will have first hand answers.

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  • 4 weeks later...

OK the saga continues ;-)

After consulting with an attorney at the self help center at the court and prowling the forums- here is what I came up with as  the summons answer:

Affirmative defense: contract

1.Lack of privity/standing

2. Failure to state the cause of action

4.unjust enrichment

5. Statute of limitations

    • I did not enter into contract or agreement with the plaintiff so the plaintiff has no legal right to sue me to collect the alleged debt

    • plaintiff does not provide any direct connection between the bill of sale and my credit card account in the bill of sale copy supplied

    • the plaintiff does not state in the complaint the specific date that the contract/agreement was entered into

    • The amount plaintiff is asking is significantly more than the amount in the statement provided as “exhibit “A” . No other evidence of the amount claimed is provided.

    • plaintiff knowingly filed the claim after the statue of limitations expired Cal. Code of Civil Proc. Section 337

    • Date of default stated in the complaint - first cause of action paragraph 10 is July 2, 2010

    • Filing date is July 3, 2014                                               What do you think?

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You can use the general denial form and assert the affirmative defense of "time barred by the running of the statute of limitations". That's all you need to say.

However; make sure the complaint is not verified. If it has a page signed by the lawyer saying he knows its true etc then it's verified and you need to use the answer form.

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OK so I've got a call today from the law office of the plaintiff. They want to settle for 5 cents on the dollar. I think I'll go for it and have it off my record. It will cost me more to pay the attorney for a consultation and help with the court documents.

Few questions:

Could this be a trick to get me to let them reset the SOL?

What should I look for when the settlement documents come?

What makes the settlement final. Should I request written guarantee that the case will be dismissed and the debt settled?

What are the proper legal forms/documents to have the settlement properly finalized?

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