Sued by Bank of America post charge-off

[zebra19]

I am on currently on disability. I have a B of A credit card debt ($11K) that was charged off three years ago--before I had been awarded my disability. I have not heard anything from that creditor in over two years. Last week I received a summons/complaint from a law firm (Howard Lee Schiff)  on behalf of the original creditor suing me for the debt.  I live in RI -the case was filed in Superior Court.  I thought the debt had gone to collection because I had received letters from collection agencies prior to and shortly after charge off- I just checked my credit report and it is not showing it as out for collection. I have other credit cards but I am current on those payments. I am not able to file bankruptcy at this time (my father died last year and will inherit a portion of the proceeds from the sale of his house-it has been on the market for 18 month with no interest-it wont be very much but more than the amount of the debt).

I need to file my answer. I think there is a problem with the complaint that I can raise in my answer- The complaint does not include an account number.  It says that there is an exhibit with a copy of my last statement as proof of the debt. There is no exhibit attached to my copy or the copy filed at court (I went to the clerk's office to check).   The amount due matches the amount on my credit report.  The account was opened in 1989.

 I am hoping to settle this and would be able to make a lump sum payment  of  $5.5 K-maybe $6K.  I have read that it is best to file an answer before making a settlement offer.

Does this sound do-able pro-se?   Because there is no proof of debt included, I was thinking I would admit that I opened a Bof A account but Deny the other parts because they are vague.     Any advice is greatly appreciated.

Edited April 21, 2016 by zebra19
added info

[Clydesmom]

27 minutes ago, zebra19 said:

 I have read that it is best to file an answer before making a settlement offer.

It is best to file an answer before the deadline so you don't get a default judgment.  You can enter into settlement negotiations at anytime prior to a verdict by the court and settlement talks are inadmissible in court.

27 minutes ago, zebra19 said:

Does this sound do-able pro-se?

This is an original creditor lawsuit.  They can be won but is a LOT harder than when the debt has been sold one or more times to a junk debt buyer because many of the defenses you read about on sites like this are not available in an OC lawsuit.

28 minutes ago, zebra19 said:

Because there is no proof of debt included

Unless your state requires it be included then it isn't helpful.  The problem in a case like this is they don't need an affidavit and BoA can attest to their own records.  The merely need to show you opened the account, used it, made payment(s), then stopped.  Statements alone can do that.

29 minutes ago, zebra19 said:

I was thinking I would admit that I opened a Bof A account but Deny the other parts because they are vague.

My opinion:  BAD plan in an OC lawsuit.   Deny everything then craft a defense and enter into settlement talks if that is what you want.

 

[zebra19]

Thank you Clydesmom- I have a couple of follow up questions noted below your text

38 minutes ago, zebra19 said:

Because there is no proof of debt included

Unless your state requires it be included then it isn't helpful.  The problem in a case like this is they don't need an affidavit and BoA can attest to their own records.  The merely need to show you opened the account, used it, made payment(s), then stopped.  Statements alone can do that.

Does it matter that the complaint says that there is a copy of the last statement attached but none is attached (to my copy nor the one filed in court)?

38 minutes ago, zebra19 said:

I was thinking I would admit that I opened a Bof A account but Deny the other parts because they are vague.

My opinion:  BAD plan in an OC lawsuit.   Deny everything then craft a defense and enter into settlement talks if that is what you want.

So, I would deny that I opened an account?  used the account? etc.

Thank you!

 

[Clydesmom]

47 minutes ago, zebra19 said:

Does it matter that the complaint says that there is a copy of the last statement attached but none is attached (to my copy nor the one filed in court)?

It might.  I do not know the rules for your state or courts so I can't say for certain one way or the other.

47 minutes ago, zebra19 said:

So, I would deny that I opened an account?  used the account? etc.

I would.  If you admit that the account is yours it is down hill there to a motion for summary judgment because how do you explain defaulting and why you are being sued?

[zebra19]

5 minutes ago, Clydesmom said:

54 minutes ago, zebra19 said:

So, I would deny that I opened an account?  used the account? etc.--

I would.  If you admit that the account is yours it is down hill there to a motion for summary judgment because how do you explain defaulting and why you are being sued?

I really appreciate your help- I am hoping they will settle with me -I dont think I have any arguments that would be compelling at trial- I got sick-ran up debt-once this one was charged-off, I  made the bad decision to focus on doing what I could with my other creditor

-I was surprised that they filed without contacting me again- it has been over two years since last letter from debt collector on this debt.    I would have thought they would have sent some type of letter first,

Does it make any difference that this account was opened in 1989 (MBNA then FIA then BOA) ?

I noticed on other complaints uploaded by posters- that the complaints included an affidavit or certification that the attorney was in fact the agent of the Plaintiff- that is not included in mine.  I also saw  affidavit/documents re: the change from MBNA to FIA then BOA.  All I have is the complaint (which does not include any account number-is missing the Exhibit which is supposed to be a copy of my last statement) there are no other documents attached.

Thank you again for your help.

[nascar]

1 hour ago, zebra19 said:

I am hoping to settle this and would be able to make a lump sum payment  of  $5.5 K-maybe $6K.  I have read that it is best to file an answer before making a settlement offer.

Definitely answer the complaint, but don't spend your money. Disability benefits are exempt from creditor claims. Even if you're unable to avoid a judgment, they're still out of luck.

[zebra19]

12 minutes ago, nascar said:

Definitely answer the complaint, but don't spend your money. Disability benefits are exempt from creditor claims. Even if you're unable to avoid a judgment, they're still out of luck.

Nascar- I have a question about judgements- if I get a judgement against me -it would not be collectable because my only income is SSDI-but what happens in the future when I have non-SSDI income/assets.  I was hoping maybe they would settle for smaller amount now rather than waiting for unknown amount of time until I return to work or get my inheritance which should be more than or close to the full amount of debt owed- 

Thank you for your time