JamesSmith Posted January 19, 2017 Report Share Posted January 19, 2017 I recently received a summons and complaint from BofA and would greatly appreciate any help on writing the Answer. I don't have much time (about 5 days unless i'm mistaken) Here are the bare facts: 1. Who is the named plaintiff in the suit? Bank of America 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Blatt, Hasenmiller, Liebsker $ Moore 3. How much are you being sued for? $5,959.89 4. Who is the original creditor? Bank of America 5. How do you know you are being sued? Recived summons and complaint 6. How were you served? (Mail, in person, Notice on door) Handed to step son 7. Was the service legal as required by your state? Unknown at this time 8. What was your correspondence (if any) with the people suing you before you think you were being sued? Received e mails and letters but did not reply 9. What state and county do you live in? Arizona, Santa Cruz County 10. When is the last time you paid on this account? March? 2016 11. What is the SOL on the debt? Not sure but I think it’s 3 years 12. What is the status of your case? Suit served? Motions filed? Suit served 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? NO 15. How long do you have to respond to the suit? Not sure. Was served Jan 3rd and have 20 days. Not sure if that includes weekends but if it does then I have only ‘til Monday 23rd (or Tuesday 24th?) 16. What evidence did they send with the summons? EXHIBIT #1 = bank statement from March 2016 Please find attached copy of allegations: Any help in writing the Answer would be appreciated Thanks! I just looked up the service of process laws in AZ and it states that a summons can be left with a person of 'suitable age and discretion' Given that my step-son who received the summons is only just turned 14 and arguably not of suitable discretion could i argue that i was improperly served? and if so would i file a counterclaim along with my answer? Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted January 19, 2017 Report Share Posted January 19, 2017 10 hours ago, tonyfalcon said: 10. When is the last time you paid on this account? March? 2016 11. What is the SOL on the debt? Not sure but I think it’s 3 years The SOL on credit card debt in AZ is 6 years not 3. If you stopped paying last year they have PLENTY of time to sue and the SOL defense is not available to you. 10 hours ago, tonyfalcon said: Given that my step-son who received the summons is only just turned 14 and arguably not of suitable discretion could i argue that i was improperly served? You could argue it but it won't work unless he is developmentally delayed and considered impaired. If he was 5 or 6 yes but a teen that is old enough to hold a job is of suitable discretion to receive the papers and understand the concept of "give this to your parents." This is an original creditor lawsuit by an aggressive OC: BoA. The defenses you read on sites like this are not suitable for an OC but are more tailored to junk debt buyers. Study up because you will need all your resources to defend a suit on an account you stopped paying on less than a year ago. Quote Link to comment Share on other sites More sharing options...
JamesSmith Posted January 19, 2017 Author Report Share Posted January 19, 2017 OK thank you, Not that it makes any difference, but actually the date of the 1st missed payment was 09/17/15. The statement they sent as 'Exhibit 1' is from March 16th so that's where i got confused. So should i just admit to all the allegations in my 'Answer'?. Quote Link to comment Share on other sites More sharing options...
JamesSmith Posted January 20, 2017 Author Report Share Posted January 20, 2017 I drafted an 'Answer' as best i could. Tomorrow i think i might call the attorney (and/or BoA) and see if it's not too late to come to an agreement. If not then i'll be filing my answer on Monday which is the 20th day. I read somewhere that if i hadn't filed an answer within the specified time the Plaintive would then send a notification for entry of default after which the Defendant has another 10 days to file an Answer. Not sure if that's true in AZ. Anyway, i attached my Answer below if anyone has any suggestions please let me know. Quote Link to comment Share on other sites More sharing options...
Pericles Posted January 20, 2017 Report Share Posted January 20, 2017 Quote So should i just admit to all the allegations in my 'Answer'?. Do you realize that if you admit to all of the allegations in the complaint. the case is over? They will file a motion for Judgment on the Pleadings or Summary Judgment and they will quickly win a judgment for the full amount. Quote Link to comment Share on other sites More sharing options...
JamesSmith Posted January 21, 2017 Author Report Share Posted January 21, 2017 I drafted an 'Answer' as best i could. Tomorrow i think i might call the attorney (and/or BoA) and see if it's not too late to come to an agreement. If not then i'll be filing my answer on Monday which is the 20th day. I read somewhere that if i hadn't filed an answer within the specified time the Plaintive would then send a notification for entry of default after which the Defendant has another 10 days to file an Answer. Not sure if that's true in AZ. Anyway, i attached my Answer below if anyone has any suggestions please let me know. Quote Link to comment Share on other sites More sharing options...
JamesSmith Posted January 21, 2017 Author Report Share Posted January 21, 2017 OK so what would happen if i deny all but the undeniable allegations? Quote Link to comment Share on other sites More sharing options...
BV80 Posted January 22, 2017 Report Share Posted January 22, 2017 22 hours ago, JamesSmith said: OK so what would happen if i deny all but the undeniable allegations? Well, both parties could proceed with discovery. But, the plaintiff could also go ahead and file a motion for summary judgment and include any other evidence it might have that proves its claims. You're dealing with an original creditor so, more than likely, it has more documentation to offer, if needed. @Harry Seaward and @Goody_Ouchless are from your state. Hopefully, one or both will respond. Quote Link to comment Share on other sites More sharing options...
JamesSmith Posted January 22, 2017 Author Report Share Posted January 22, 2017 OK thanks, In that case it's probably pointless for me to file an Answer since there's nothing i can legitimately object to. I suppose my only options now are, negotiate a settlement or let them get a default judgement. Thanks for all the help everyone... Quote Link to comment Share on other sites More sharing options...
debtzapper Posted January 22, 2017 Report Share Posted January 22, 2017 9 minutes ago, JamesSmith said: OK thanks, In that case it's probably pointless for me to file an Answer since there's nothing i can legitimately object to. I suppose my only options now are, negotiate a settlement or let them get a default judgement. Thanks for all the help everyone... Wait a minute. We have won a number of AZ cases here by using arbitration, and that has nothing to do with objecting to anything. Arbitration is very costly for creditors and if done correctly, most will dismiss. Just be patient and someone will come along, and if you work hard you can win. 1 Quote Link to comment Share on other sites More sharing options...
BV80 Posted January 22, 2017 Report Share Posted January 22, 2017 55 minutes ago, debtzapper said: Wait a minute. We have won a number of AZ cases here by using arbitration, and that has nothing to do with objecting to anything. Arbitration is very costly for creditors and if done correctly, most will dismiss. Just be patient and someone will come along, and if you work hard you can win. BofA removed arbitration somewhere around 2009. If the OP opened the account after that, there would not be an arbitration provision in the agreement. In the event he opened the account before 2009, he'd have to argue the survivability clause. Quote Link to comment Share on other sites More sharing options...
debtzapper Posted January 22, 2017 Report Share Posted January 22, 2017 41 minutes ago, BV80 said: BofA removed arbitration somewhere around 2009. If the OP opened the account after that, there would not be an arbitration provision in the agreement. In the event he opened the account before 2009, he'd have to argue the survivability clause. Existing individual customers who currently have the right to arbitrate a dispute will retain that right, but the bank will not require it ps://www.nclc.org/images/pdf/arbitration/testimonysept09-exhibit5.pdf Quote Link to comment Share on other sites More sharing options...
BV80 Posted January 22, 2017 Report Share Posted January 22, 2017 7 minutes ago, debtzapper said: Existing individual customers who currently have the right to arbitrate a dispute will retain that right, but the bank will not require it ps://www.nclc.org/images/pdf/arbitration/testimonysept09-exhibit5.pdf If the OP opened the account before the arbitration provision was removed, he could use that notice. Quote Link to comment Share on other sites More sharing options...
JamesSmith Posted January 23, 2017 Author Report Share Posted January 23, 2017 21 hours ago, BV80 said: If the OP opened the account before the arbitration provision was removed, he could use that notice. OK thanks again guys, Unfortunately I opened the account in 2013.......Today is the last day to file an Answer unless they send notice of 'entry of default' after which i get another 10 days to answer but i'm told they don't have to do that so i'm not holding my breath. Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted January 23, 2017 Report Share Posted January 23, 2017 2 hours ago, JamesSmith said: i get another 10 days to answer but i'm told they don't have to do that so i'm not holding my breath. They do have to according to the rules, but the courts occasionally forget what the rules say. Based on the info you've provided, I'm going to predict BofA will get a judgment against you. If you intend to settle, making an offer sooner than later is the general rule. Since arbitration is off the table, your only other option is to litigate this and hope they lost your account records or can't properly authenticate them. If you go this route and lose, you'll owe them for their legal fees and court costs on top of the $5,900 they sued you for. And then 10% interest on the judgment until it's paid. Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted January 24, 2017 Report Share Posted January 24, 2017 1 hour ago, Harry Seaward said: Since arbitration is off the table, your only other option is to litigate this and hope they lost your account records or can't properly authenticate them. What about answering the suit and then doing discovery? If they can't produce any records then there is a chance at getting a better settlement based on a lack of evidence. If they DO have the records authentication is not an issue because they will not need an affidavit that can be challenged. The OC is suing and is able to authenticate their own records. Settlement talks are not admissible and you can actively start defending this while engaging in settlement talks and if you get a number you are comfortable with take it and settle. Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted January 24, 2017 Report Share Posted January 24, 2017 3 hours ago, Clydesmom said: What about answering the suit and then doing discovery? Whatever they spend on resources in litigation is going to cut into the deal they will be willing to accept. Figure discovery will probably be itemized at ~3 hours x $150/hr. Then weigh that against the likelihood of them having the paper to prove the debt. If I was in a position to settle for 1/2 of the amount of the debt, I'd not take the risk of continued litigation and offer them 25% to see where it goes. Don't miss the deadline for an answer though. You filing an answer doesn't cost them anything. 2 Quote Link to comment Share on other sites More sharing options...
BV80 Posted January 24, 2017 Report Share Posted January 24, 2017 @Clydesmom I agree with @Harry Seawardon this. OC's can usually provide the necessary documentation and affidavit to prove a debt. Unless the OP has evidence to the contrary or the OC doesn't have documentation, chances are that the court will rule in the creditor's favor. Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted January 24, 2017 Report Share Posted January 24, 2017 1 hour ago, Harry Seaward said: Whatever they spend on resources in litigation is going to cut into the deal they will be willing to accept. Figure discovery will probably be itemized at ~3 hours x $150/hr. Maybe. Often these firms are contracted on a flat fee retainer to handle a specific number of cases per year. Each case is not broken down on an hourly basis unless they actually win in court and want their fees awarded. It also would not automatically be 3 hours either. They either have the documents or they don't. 16 minutes ago, BV80 said: OC's can usually provide the necessary documentation and affidavit to prove a debt. Unless the OP has evidence to the contrary or the OC doesn't have documentation, chances are that the court will rule in the creditor's favor. I don't disagree but there are other options besides simply giving up and letting them get a judgment. Quote Link to comment Share on other sites More sharing options...
JamesSmith Posted January 24, 2017 Author Report Share Posted January 24, 2017 1 hour ago, Harry Seaward said: Whatever they spend on resources in litigation is going to cut into the deal they will be willing to accept. Figure discovery will probably be itemized at ~3 hours x $150/hr. Then weigh that against the likelihood of them having the paper to prove the debt. If I was in a position to settle for 1/2 of the amount of the debt, I'd not take the risk of continued litigation and offer them 25% to see where it goes. Don't miss the deadline for an answer though. You filing an answer doesn't cost them anything. OK thanks guys, I guess i'll call tomorrow and see if they will enter into negotiations for a settlement. I already missed the deadline to file an answer unless i get the 10 days we talked about. Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted January 24, 2017 Report Share Posted January 24, 2017 1 hour ago, Clydesmom said: Maybe. Often these firms are contracted on a flat fee retainer to handle a specific number of cases per year. Each case is not broken down on an hourly basis unless they actually win in court and want their fees awarded. It also would not automatically be 3 hours either. They either have the documents or they don't. They almost certainly will have the documents. Last payment on this account was less than a year ago and it's an OC suing. I was ballparking on the 3 hours and $150/hr. In my own case it was 3.2 hours and a total of $680. Quote Link to comment Share on other sites More sharing options...
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