Vinsey

How to Navigate Court Summons for CC Debt

42 posts in this topic

40 minutes ago, Vinsey said:

They told me that they are a debt collector working on behalf of PRA who is successor in interest to Barclays Bank Delaware blah blah blah, and they started asking me all sorts of questions basically trying to get me to admit to the debt

It is always a bad idea to call the attorneys working against you at this stage. The above is all you will ever get from them.

46 minutes ago, Vinsey said:

SO, all they have is an affidavit swearing that they have the legal right to my debt??

Enough for the court to rule in their favor.

46 minutes ago, Vinsey said:

I feel like the debt has been passed around between so many hands at this point nobody has anything of value as proof and it's a good thing? please let me know if any of this makes sense or sounds like good news.

The only good news to me in suits like this is that sweet little arbitration clause in the Barclay's card agreements.  Anything else is way too risky for me to mess with, personally.

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39 minutes ago, fisthardcheese said:

It is always a bad idea to call the attorneys working against you at this stage. The above is all you will ever get from them.

Enough for the court to rule in their favor.

The only good news to me in suits like this is that sweet little arbitration clause in the Barclay's card agreements.  Anything else is way too risky for me to mess with, personally.

Okay I didn't think it was much. I have my sworn denial form filled and I am trying to write out an MTC. I'm using your sample MTC as an outline instead of copy pasting as per your advice lol. It's tough cause your sample looks really good! I'm using the wording from Barclays card agreements arbitration clause and all that. Hopefully it'll be enough for them to drop me.

I'm attempting to get in contact with barclays to get a card agreement from when I opened the card instead of the one available online. the one online thats available is from 2017. I'm not sure if I attach that one it will be accepted as my cardmember agreement

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I think before you did all of that you should have consulted here first. If your calling them without any real knowledge, poking the bear, it could end up bad for you once backed into a corner.

If you have looked up your local court house where your case is being handled, and you have gone through the rules of that specific court, and they say specifically there is no formal way to respond to a complaint, I myself for my own personal protection would draft something up and file it with the court anyway. (that is just how i would still handle it myself) That shows you are active in the case, and putting them on alert that you are following through with this.

When it comes to the actual paperwork your referring to, it is a legit sworn affidavit stating that to the best of their knowledge everything is factual and true. In turn if you do not fight that alone it could cost you a loss. Draw up a response to the Plaintiffs complaint, and point out that there is a lack of subject mater jurisdiction and that you are electing to move this case to arbitration per your card holder agreement.

 

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@fisthardcheese

So the only Cardmember agreement I can obtain is the most current one. I went round and round on the phone with Barclays to try and get the Cardmember agreement from when I opened the account and cannot get it. In your Arbitration Outline you talk about attaching the Cardmember agreement and an affidavit swearing its the true and correct copy. Should I do what you say but attach the 2017 cardmember agreement? I don't want to screw myself over using that. 

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1 hour ago, Vinsey said:

@fisthardcheese

So the only Cardmember agreement I can obtain is the most current one. I went round and round on the phone with Barclays to try and get the Cardmember agreement from when I opened the account and cannot get it. In your Arbitration Outline you talk about attaching the Cardmember agreement and an affidavit swearing its the true and correct copy. Should I do what you say but attach the 2017 cardmember agreement? I don't want to screw myself over using that. 

Yes.  If you believe the 2017 agreement is the same, then it is accurate to testify that it is a true and correct copy of the card agreement that govorned your account.  If the other side disagrees, then they are free to present the correct agreement (which will contain the same arbitration clause in it anyway) and then you can state that you do not object to the admission of their agreement into the record.  Your MTC will still stand using their "correct" agreement.

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3 minutes ago, fisthardcheese said:

Yes.  If you believe the 2017 agreement is the same, then it is accurate to testify that it is a true and correct copy of the card agreement that govorned your account.  If the other side disagrees, then they are free to present the correct agreement (which will contain the same arbitration clause in it anyway) and then you can state that you do not object to the admission of their agreement into the record.  Your MTC will still stand using their "correct" agreement.

Thanks buddy, I am going to get everything finished and ready to notarize and get sent out to the plaintiffs attorney and filed with the clerk tomorrow due to today being presidents day. I really appreciate your help!

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@Vinsey I was able to find the 4/2016 Barclays agreement in the Archived Q1-2016 file. The affidavit claims "...there was due and payable from VINSEY S. ("Debtor and Co-Debtor") to the Account Seller the sum of $2,948.88 with the respect to account number ending in 7968 as of the date of 3/30/2016..." 

https://www.consumerfinance.gov/credit-cards/agreements/

Archived Q1-2016 agreements  https://files.consumerfinance.gov/a/assets/CCADB_Snapshot_2016_Q1.zip

Archived January 2016 agreements  https://files.consumerfinance.gov/a/assets/CCADB_Snapshot_2015_Q4.zip

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1 minute ago, Brotherskeeper said:

@Vinsey I was able to find the 4/2016 Barclays agreement in the Archived Q1-2016 file. The affidavit claims "...there was due and payable from VINSEY S. ("Debtor and Co-Debtor") to the Account Seller the sum of $2,948.88 with the respect to account number ending in 7968 as of the date of 3/30/2016..." 

https://www.consumerfinance.gov/credit-cards/agreements/

Archived Q1-2016 agreements  https://files.consumerfinance.gov/a/assets/CCADB_Snapshot_2016_Q1.zip

Archived January 2016 agreements  https://files.consumerfinance.gov/a/assets/CCADB_Snapshot_2015_Q4.zip

oh man, I checked consumerfinance.gov but I guess not hard enough. Thats awesome thank you! I'll go ahead and read the arb clause and see if its the same and use it over the 2017 instead.

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30 minutes ago, Vinsey said:

I'll go ahead and read the arb clause and see if its the same and use it over the 2017 instead.

It's even better if the 2017 arb clause is the same as the 2016, or the 2014 for that matter. I may have missed it, but did you indicate what year this account was opened? 

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1 minute ago, Brotherskeeper said:

It's even better if the 2017 arb clause is the same as the 2016, or the 2014 for that matter. I may have missed it, but did you indicate what year this account was opened? 

The account was opened in 2014. I'm not sure its any different at all though seeing how the 2016 is the same as 2017. I feel as though they don't change it much. Although as Fisthardcheese says;

43 minutes ago, fisthardcheese said:

Yes.  If you believe the 2017 agreement is the same, then it is accurate to testify that it is a true and correct copy of the card agreement that govorned your account.  If the other side disagrees, then they are free to present the correct agreement (which will contain the same arbitration clause in it anyway) and then you can state that you do not object to the admission of their agreement into the record.  Your MTC will still stand using their "correct" agreement.

So I feel as though I'm relatively safe in this aspect.

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@Vinsey The terms quoted below are very important and aren't found in the arbitration section. If I were in your shoes, I'd include the entire agreement. I'd also check your court rules to see if it's even allowed to attach only a part of an agreement.

"Assignment. We may at any time assign or sell your Account, any sums due on your Account, this Agreement or our rights or obligations under this Agreement. The person(s) to whom we make any such assignment or sale shall be entitled to all of our rights under this Agreement, to the extent assigned.

Governing Law. THIS AGREEMENT AND YOUR ACCOUNT WILL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE AND, AS APPLICABLE, FEDERAL LAW."

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On 1/31/2019 at 9:21 PM, Vinsey said:

To appear before the General Sessions Court of County, Tennessee. To be held at Address, on at, then and there to answer in a civil action brought by Portfolio Recovery Associates, LLC. Upon sworn account, as evidenced by the attached affidavit, wherein it is alleged that the amount due and owing on account number ending in 7698 is $2,948.88 as of September 2, 2015, minus payment(s) made since such date, if any for a total Judgement amount of $2,948.88 as of November 30, 2018. Plaintiff is not seeking any attorney fees or interest that may have accrued since the date of charge-off or similar categorization of the debt. Plaintiff expressly disclaims any such fees or interest that may be due. Plaintiff requests private process fees and court costs.

WHEREFORE: Plaintiff demands judgement against the Defendant for the sums set forth above and costs.

@Vinsey I noticed you're being sued on a sworn account cause of action. Here's creditor lawyer's article on TN sworn account, followed by a blurb from a legal self-help booklet:

SWORN ACCOUNTS UNDER TENNESSEE LAW: WHY, WHEN, AND HOW?

"Sometimes, a creditor’s lawyer will file an action against a borrower as a “sworn account.”  These are basically lawsuits on steroids, but they aren’t as common as you’d expect.

This device is allowed by Tenn. Code Ann. § 24-5-107, titled “Sworn accounts; denials,” which states that an action that is filed “with the affidavit of the plaintiff or its agent to its correctness…is conclusive against the party sought to be charged, unless that party on oath denies the account…”  There’s an exception under § 24-5-107(b), that allows a court to accept an oral denial of the sworn account.

The reason behind sworn accounts is to make the debt collection process easier, especially on debts where there is no dispute. It shifts the burden of denial to the defending party.

Some courts treat these like a “procedural trap;” faced with a properly authenticated and sworn account, the defendant who doesn’t present a proper sworn response will automatically lose. One Court has said: “[t]he statute is quite clear that in the absence of a sworn denial the plaintiff is entitled to judgment on the sworn account.”

But, when a sworn denial is filed, the burden shifts back to the plaintiff to support his claims with actual evidence at the trial, i.e. the sworn account becomes a moot point.

So, when and why would you proceed on a sworn account?

Primarily, I file them when I’m before courts that don’t have a “free continuance” Local Rule, like Davidson County. That way, if I show up and  have my witness with me at court, I’ve got some proof of my claims with a sworn account.

Some lawyers file them hoping to set the procedural trap, hoping the other side will neglect to file a “Sworn” Answer, but that seems sneaky (but, it’s supported by the caselaw).

Other than the extra step involved (preparing and filing an Affidavit), there’s not any downside to proceeding with a Sworn Account."

 

SWORN ACCOUNTS AND OTHER DEBTS

"An account may involve a credit card debt or virtually any other type of debt.

Legal proceedings typically involve “sworn accounts” where the creditor uses an affidavit to prove the debt and not testimony in person.

Suits based on sworn accounts are governed by Tenn. Code Ann. § 24-5-107. See also Tenn. Code Ann. § 24-5-104.

The only effective response to a sworn account is a sworn denial, that is, a written denial executed under oath and filed with the court. Any other response (an unsworn answer, even an appearance by the defendant without a written answer) must be ignored by the court and will result in automatic judgment for the plaintiff.

Once a sworn response has been filed, or if no affidavit is filed by the creditor, the burden is upon the creditor to prove the debt, usually by testimony in person."

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19 hours ago, Brotherskeeper said:
 

@Vinsey I noticed you're being sued on a sworn account cause of action. Here's creditor lawyer's article on TN sworn account, followed by a blurb from a legal self-help booklet:

SWORN ACCOUNTS UNDER TENNESSEE LAW: WHY, WHEN, AND HOW?

"Sometimes, a creditor’s lawyer will file an action against a borrower as a “sworn account.”  These are basically lawsuits on steroids, but they aren’t as common as you’d expect.

This device is allowed by Tenn. Code Ann. § 24-5-107, titled “Sworn accounts; denials,” which states that an action that is filed “with the affidavit of the plaintiff or its agent to its correctness…is conclusive against the party sought to be charged, unless that party on oath denies the account…”  There’s an exception under § 24-5-107(b), that allows a court to accept an oral denial of the sworn account.

The reason behind sworn accounts is to make the debt collection process easier, especially on debts where there is no dispute. It shifts the burden of denial to the defending party.

Some courts treat these like a “procedural trap;” faced with a properly authenticated and sworn account, the defendant who doesn’t present a proper sworn response will automatically lose. One Court has said: “[t]he statute is quite clear that in the absence of a sworn denial the plaintiff is entitled to judgment on the sworn account.”

But, when a sworn denial is filed, the burden shifts back to the plaintiff to support his claims with actual evidence at the trial, i.e. the sworn account becomes a moot point.

So, when and why would you proceed on a sworn account?

Primarily, I file them when I’m before courts that don’t have a “free continuance” Local Rule, like Davidson County. That way, if I show up and  have my witness with me at court, I’ve got some proof of my claims with a sworn account.

Some lawyers file them hoping to set the procedural trap, hoping the other side will neglect to file a “Sworn” Answer, but that seems sneaky (but, it’s supported by the caselaw).

Other than the extra step involved (preparing and filing an Affidavit), there’s not any downside to proceeding with a Sworn Account."

 

SWORN ACCOUNTS AND OTHER DEBTS

"An account may involve a credit card debt or virtually any other type of debt.

Legal proceedings typically involve “sworn accounts” where the creditor uses an affidavit to prove the debt and not testimony in person.

Suits based on sworn accounts are governed by Tenn. Code Ann. § 24-5-107. See also Tenn. Code Ann. § 24-5-104.

The only effective response to a sworn account is a sworn denial, that is, a written denial executed under oath and filed with the court. Any other response (an unsworn answer, even an appearance by the defendant without a written answer) must be ignored by the court and will result in automatic judgment for the plaintiff.

Once a sworn response has been filed, or if no affidavit is filed by the creditor, the burden is upon the creditor to prove the debt, usually by testimony in person."

This is great information as always @Brotherskeeper!!  It looks like in addition to the Affidavit for the Card Agreement, OP should also file a Sworn Denial signed by a notary as well.  Because of this language and TN law, I might also consider include wording in my affidavit for the card agreement that states something such as:  "Although I affirm I once held an account with Barclay's Bank, I deny that any amount is owed and due as asserted in the Plaintiff's Complaint to XXX Court dated XX/XX/2018"

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20 hours ago, Vinsey said:

@fisthardcheese Hey sorry quick question, Should I attach the FULL 12 page Cardmember agreement or just the part with the arbitration clause?

The full agreement would be required for court.  You can reference the page and/or paragraph number of the arbitration clause in your MTC when quoting from the clause.

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20 hours ago, Brotherskeeper said:

@VinseyGoverning Law. THIS AGREEMENT AND YOUR ACCOUNT WILL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE AND, AS APPLICABLE, FEDERAL LAW."

So, I read that Delawares SOT is 3 years on debt collection. In the civil summons they even say "Wherein it is alleged that the amount due and owing on the account number ending in 7968 is $2,948.88 as of September 2, 2015, minus payment(s) made since such date, if any for a total judgment amount of $2,948.88 as of November 30, 2018." 

Does this mean it falls outside of the SOT? 

19 hours ago, Brotherskeeper said:

@Vinsey I noticed you're being sued on a sworn account cause of action. Here's creditor lawyer's article on TN sworn account, followed by a blurb from a legal self-help booklet:

SWORN ACCOUNTS UNDER TENNESSEE LAW: WHY, WHEN, AND HOW?

"Sometimes, a creditor’s lawyer will file an action against a borrower as a “sworn account.”  These are basically lawsuits on steroids, but they aren’t as common as you’d expect.

This device is allowed by Tenn. Code Ann. § 24-5-107, titled “Sworn accounts; denials,” which states that an action that is filed “with the affidavit of the plaintiff or its agent to its correctness…is conclusive against the party sought to be charged, unless that party on oath denies the account…”  There’s an exception under § 24-5-107(b), that allows a court to accept an oral denial of the sworn account.

The reason behind sworn accounts is to make the debt collection process easier, especially on debts where there is no dispute. It shifts the burden of denial to the defending party.

Some courts treat these like a “procedural trap;” faced with a properly authenticated and sworn account, the defendant who doesn’t present a proper sworn response will automatically lose. One Court has said: “[t]he statute is quite clear that in the absence of a sworn denial the plaintiff is entitled to judgment on the sworn account.”

But, when a sworn denial is filed, the burden shifts back to the plaintiff to support his claims with actual evidence at the trial, i.e. the sworn account becomes a moot point.

So, when and why would you proceed on a sworn account?

Primarily, I file them when I’m before courts that don’t have a “free continuance” Local Rule, like Davidson County. That way, if I show up and  have my witness with me at court, I’ve got some proof of my claims with a sworn account.

Some lawyers file them hoping to set the procedural trap, hoping the other side will neglect to file a “Sworn” Answer, but that seems sneaky (but, it’s supported by the caselaw).

Other than the extra step involved (preparing and filing an Affidavit), there’s not any downside to proceeding with a Sworn Account."

 

SWORN ACCOUNTS AND OTHER DEBTS

"An account may involve a credit card debt or virtually any other type of debt.

Legal proceedings typically involve “sworn accounts” where the creditor uses an affidavit to prove the debt and not testimony in person.

Suits based on sworn accounts are governed by Tenn. Code Ann. § 24-5-107. See also Tenn. Code Ann. § 24-5-104.

The only effective response to a sworn account is a sworn denial, that is, a written denial executed under oath and filed with the court. Any other response (an unsworn answer, even an appearance by the defendant without a written answer) must be ignored by the court and will result in automatic judgment for the plaintiff.

Once a sworn response has been filed, or if no affidavit is filed by the creditor, the burden is upon the creditor to prove the debt, usually by testimony in person."

Thank you for this information, Every time I think I got my head wrapped around something, it goes and changes a little lol. Well I have a sworn denial form that was mentioned to me by you @Brotherskeeper and have it filled out including mentioning Arbitration as my affirmative defense. Should I be adding anything to that? Thanks guys

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6 minutes ago, Vinsey said:

So, I read that Delawares SOT is 3 years on debt collection. In the civil summons they even say "Wherein it is alleged that the amount due and owing on the account number ending in 7968 is $2,948.88 as of September 2, 2015, minus payment(s) made since such date, if any for a total judgment amount of $2,948.88 as of November 30, 2018." 

Does this mean it falls outside of the SOT? 

Thank you for this information, Every time I think I got my head wrapped around something, it goes and changes a little lol. Well I have a sworn denial form that was mentioned to me by you @Brotherskeeper and have it filled out including mentioning Arbitration as my affirmative defense. Should I be adding anything to that? Thanks guys

If your court offers a sworn denial form, then I would have to believe that covers it pretty well.

 

7 minutes ago, Vinsey said:

Does this mean it falls outside of the SOT? 

Not necessarily.  I don't usually put much stock into the contractual choice of law because you can still be sued in the county where you reside and most courts do not recognize SOL as being a procedural - whatever the heck they call it.  Basically they find ways to apply your state's SOL anyway.

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