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Discover is suing me but I haven't been served!!!!


Mt1720
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I am being sued by Discover bank. I had a secured credit card with them for 1,000. I was charged by a rental company 2,300 for a car I rented for someone who didn't return it on time. I lost my job and couldn't pay them back. I honestly don't have the money to pay them back now. What should I do?  I haven't been properly served because I don't live with my mom and they leave letters to pick up mail and sign for it at the post office. I have been ignoring it and want to know if that's even a good idea.  Should I Ignore and not sign for the letters or go to court? I feel it's a lose lose but I need to know what is the best thing to do now.

info below

1. What is the name of the company suing you?

Discover Bank

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

Geoffrey M. Hersch 

3. How much are you being sued for?

Upto $10 thousand

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

Discover Bank

5. How do you know you are being sued?

its being sent to my mother's address and they haven't been able to serve me and keep leaving a letter that I have to pick up certified mail from the post office with my signature. They will not give it to anyone else. I looked on the courts website to see who it was suing me. 

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

I wasn't served

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

Not sure since nothing was received

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?

Nothing

9. What state and county do you live in?

Live in California Santa Clara County

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

Not sure. Believe in 2016

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

4 years

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).

8/10/2017 Civil Case Cover sheet

8/10/2017 Complaint limited upto $10K

8/10/2017 Summons Issue Filed

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? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No

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?

i don't know since I haven't actually signed or received anything.

 

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Never ignore process of service letters. That will not end well because they will eventually use alternate service and then get a judgement. Being Discover, they are a original creditor who has the records and are very hard to beat and will follow you into arb. I would suggest finding a way to settle if you can. Otherwise, close your bank accounts and start to live on cash because they will probably get a judgement.

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  • 2 weeks later...

Today is September 05, 2017..Have you done anything about discover as of today?

If not then I will monitor this thread and offer some advice on dealing with Discover...They can be beat...

You indicate that you had a "secured card" with Discover for $1,000...If that is the case, doesn't that mean that your credit limit was also $,1000...Please explain how a Car Rental Company could process a charge for $2,900 if your limit was only $1,000.

 

Inasmuch as you have not been served with a complaint, you have some time to study your defenses and then make a determination if you will be equipped to fight...But be forewarned, based upon your current questions, you have a long road to hoe (but its not impossible. 

It's fight or flight time.

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3 hours ago, Xcalibar said:

If not then I will monitor this thread and offer some advice on dealing with Discover...They can be beat...

@Mt1720 You need to proceed very thoughtfully.  If you decide to fight Discover in court, you stand a very good chance of losing.  At that point they will have a judgment against you and will garnish wages and put levies on your bank accounts.  Alternatively, you may be able to settle this debt for 50%-75% of the amount owed.  I know this doesn't sound like a great option, but is better than someone like Discover hounding you for the next decade.    Having said that, if you really have no access to any money to offer in settlement (borrow from friends/family?), at that point you should definitely not ignore service of process and should try to fight back in court.

3 hours ago, Xcalibar said:

You indicate that you had a "secured card" with Discover for $1,000...If that is the case, doesn't that mean that your credit limit was also $,1000...Please explain how a Car Rental Company could process a charge for $2,900 if your limit was only $1,000.

They can do it just like he described.  The limit is only for the consumer, meaning he couldn't rent a $50/day car for 3 days with only $100 available credit.  On the other hand, credit card companies have agreements with car rental companies and hotels that allow them to process charges in excess of the credit limits in order to protect the merchants from losses caused by consumers, as was the case with OP.

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@Mt1720

Wow...I really don't quite understand how a bank can just give someone $2,000 in excess of my credit imti and then come at me and expect me to pay them when I did not ask for an extension of funds and most certainly did not approve of giving the Rental Car Company and extra $2,000 above my credit limit...

I am almost positive that the Rental Car Company did not get a Pre-Aporoval for $3,000 on the initial swipe of the Victims credit card...That should definitely be a defense against the charges...and I can pretty much guarantee that there is nothing in the Credit Card Agreement" that obligates Discover to automatically increase a Members credit limit to cover a Rental Car Agency's realized loss due to damage...

 

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Mt1720 does not identify what state he is from, but it really doesn't matter...

Discover can be be beat...Please see this Pro Se Defendant beat Discover rather easily...Heck Original Creditor or Junk Debt Buyer, they can all positively be beat if you just conduct your research and understand the Rules of Evidence regarding the non admissibility of Hearsay and the requirement for Affidavits to be sworn upon "Personal Knowledge"...

Please review the below case and post any comments or inquiries that need to be addressed...

2016-Ohio-2751

DISCOVER BANK, Plaintiff-Appellee,
v.
JAMES F. SWARTZ, Defendant-Appellant.

OPINION

FAIN, J.

{¶ 1} Defendant-appellant James F. Swartz appeals, pro se, from a judgment rendered against him by the Montgomery County Common Pleas Court, in favor of plaintiff-appellee Discover Bank. Swartz has not identified any specific assignments of error, but argues that the trial court erred in granting Discover Bank's motion for judgment on the pleadings. Discover Bank asserts that the pleadings sufficiently established the amount due on the contract. We conclude that Discover Bank's motion for judgment on the pleadings did not establish that it was entitled to judgment. Therefore, the judgment is Reversed, and this cause is Remanded for further proceedings.

https://scholar.google.com/scholar_case?q=2016-ohio-2751&hl=en&as_sdt=4,36&case=15206912774019301783&scilh=0

 

 

 

 

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I would always use arbitration, regardless of those who say "discover will follow into arbitration".  The point of arbitration with an OC like Discover is not to necessarily "beat" them like you would a JDB, but to cause a much more favorable settlement.  The arbitration process can be drawn out over a year, giving you more time to save up a lump sum of money and costing the OC a lot of money along the way, making them potentially more open to accepting a lower settlement offer.  This, as opposed to court, which is over with in 30 days with a 150% judgement against you, I'd take arbitration every time.

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8 hours ago, Xcalibar said:

Wow...I really don't quite understand how a bank can just give someone $2,000 in excess of my credit imti and then come at me and expect me to pay them when I did not ask for an extension of funds and most certainly did not approve of giving the Rental Car Company and extra $2,000 above my credit limit...

I already explained how they can do it.  Credit card companies rely on merchants accepting their cards, so they build in certain merchant protections into the merchant agreements so that merchants feel confidant accepting their credit cards.

8 hours ago, Xcalibar said:

I am almost positive that the Rental Car Company did not get a Pre-Aporoval for $3,000 on the initial swipe of the Victims credit card

They don't need pre-approval.   The merchants will put a temporary hold on your account for an estimated amount.  If the customer brings the car back with 3 broken windows, or sets a fire in the bathroom of their hotel, the merchants will tack those charges on to the credit card.  All of that is right in the rental agreements you sign at the time you rent.

By the way, the only "victim" here is Discover.  By allowing his/her credit card to be used as payment for the rental car, OP assumed ALL of the charges related to the car rental.  He/she likely has (or had) a tort claim against the person that failed to return the car and could have sued that person, but as of now Discover is the only one who has suffered a loss.

8 hours ago, Xcalibar said:

That should definitely be a defense against the charges.

Failing to adhere to a car rental agreement that results in over limit charges is NOT a defense.

8 hours ago, Xcalibar said:

and I can pretty much guarantee that there is nothing in the Credit Card Agreement" that obligates Discover to automatically increase a Members credit limit to cover a Rental Car Agency's realized loss due to damage.

The credit limit wasn't "automatically increased".  Discover processed the over limit charge (thus making the account over the limit), which they are entitled to do.  The credit card agreement doesn't say the credit card company will never process charges over the credit limit.  In fact, there are entire paragraphs in the agreements that discuss what happens when an account goes over the limit.  If it was a breach of the agreement for the card issuer to allow charges that put the account over the limit, there would be no need for them to discuss over limit situations.

8 hours ago, Xcalibar said:

Mt1720 does not identify what state he is from, but it really doesn't matter...

Said he/she was in California in the first post.  And it does matter, actually.

8 hours ago, Xcalibar said:

Discover can be be beat...Please see this Pro Se Defendant beat Discover rather easily...Heck Original Creditor or Junk Debt Buyer, they can all positively be beat if you just conduct your research and understand the Rules of Evidence regarding the non admissibility of Hearsay and the requirement for Affidavits to be sworn upon "Personal Knowledge"...

The case you posted had ABSOLUTELY ZERO to do with claimed "personal knowledge".  The problem for Discover in that case was the fact that they moved for a directed verdict without having properly established all of the elements of a breach of contract claim in their pleadings.  Not saying it couldn't happen again in OP's case, but distinction of the different ways a case can go is relevant.

As far as "personal knowledge" goes, an affiant/witness need not have "personal knowledge" of the origin of every piece of evidence they are called upon to introduce.  Otherwise a plaintiff would never be able to recover damages if their "personal knowledge" witness gets hit by a bus.  The law makes allowances for these circumstances by way of Exceptions to the Rule Against Hearsay.

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4 hours ago, fisthardcheese said:

I would always use arbitration, regardless of those who say "discover will follow into arbitration".  The point of arbitration with an OC like Discover is not to necessarily "beat" them like you would a JDB, but to cause a much more favorable settlement.  The arbitration process can be drawn out over a year, giving you more time to save up a lump sum of money and costing the OC a lot of money along the way, making them potentially more open to accepting a lower settlement offer.  This, as opposed to court, which is over with in 30 days with a 150% judgement against you, I'd take arbitration every time.

The OP is in CA.   It seems that the judicial process takes longer in that state which could also give the OP time to save money.  Hopefully, @calawyer will offer his opinion.

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9 hours ago, Xcalibar said:

Mt1720 does not identify what state he is from, but it really doesn't matter...

The OP is in California.   That state has certain court rules that are more favorable to defendants. 

In regard to the credit limit, as @Harry Seaward pointed out, credit card companies routinely process charges that are over the credit limit.   I suppose you could say, the bank is not going to punish the vendor if the service or merchandise has already been provided.

Swartz doesn't really help the OP.  First, it's not a CA ruling.  Second, two of the reasons the ruling was reversed was because Discover did not establish a date of default or the contractual rate of interest.   That's not difficult to establish, so I can only think that its attorney was careless and dropped the ball.

Note that the court did not rule that Swartz owed nothing.  The court merely reversed the lower court's ruling and "remanded for further proceedings". 

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