Vinsey

How to Navigate Court Summons for CC Debt

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I've just received a court summons for credit card debt that was charged off in 2015 ($2,948 by Barclays Bank). The plaintiff is Portfolio Recovery Associates. The debt is valid but I am unable to pay the whole amount. My tiny family (gf and dog) live off my <$1,400 monthly wage with rent being nearly 50%. We don't own any property or expensive household goods. We rent a studio. My car is valued around $1k. 

After researching the forums, it seems as though I should: 
1. Call their law firm to negotiate a settlement. Hopefully, dismissing the lawsuit, agreeing on a payment schedule, and following said agreements in writing. I can only offer to pay a max of $200 per month so I'm unsure if the debtor will agree. 

2. File a motion for slow pay if the debtor doesn't agree on a payment schedule. 

3. File an Affidavit of Claim Exemptions if a judgement will be made, to ensure my car isn't taken so I can travel to work. 

Are my next steps correct? Other than calling their law firm, do I need to send them anything before appearing in court? Also, the summons is stamped by Steve Anderson & Associates in TN although Fenton Law in KY is their law firm. Who should I contact?

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If this were me, I would instead just file a motion to compel arbitration due to the arbitration clause in the Barclay's bank card agreement.  I would then wait for PRA to drop the court case because they don't want to pay the $5000 AAA arbitration fee to pursue an alleged debt for $2k.

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On 1/23/2019 at 6:34 AM, fisthardcheese said:

If this were me, I would instead just file a motion to compel arbitration due to the arbitration clause in the Barclay's bank card agreement.  I would then wait for PRA to drop the court case because they don't want to pay the $5000 AAA arbitration fee to pursue an alleged debt for $2k.

Thank you so much for your answer, I started looking into filing an MTC based off your answer. I have looked at your post on Arbitration Overview and really feel like I can do it. I'm still a bit foggy on how to do certain things though but I have a consultation with a pro bono lawyer here and maybe they can help answer some of my questions specifically pertaining to this courthouse. 

Your Arbitration Overview states that I should give my answer to the summons AND my Motion to Compel Arbitration. Is the MTC a form or something I just write out? 

Thank you for your help!

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The MTC you write out, there is no form as every case is different. There are many different threads with examples and helpful incite on how to go about it.

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1 minute ago, MikeB35 said:

The MTC you write out, there is no form as every case is different. There are many different threads with examples and helpful incite on how to go about it.

I'll check some of them out to try and get a better understanding. The whole legal language makes me nervous but hopefully I can figure it out, Thank you!

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Dont be nervous, we have all started in your shoes. I implore you to research everything. If a word sounds funny or you dont understand it, google it. You are doing this all Pro Se, (on your own representation) so all the work MUST be done by you and you alone. I cannot stress this enough, its work so take at least 2 hrs a night to read up and study. Use as much of the 28 days as you can, and be sure to respond to anything with the court and SHOW UP to any court apperance. Double and triple check your response for spelling. etc. etc.

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On 1/26/2019 at 3:44 PM, Vinsey said:

I have a consultation with a pro bono lawyer here and maybe they can help answer some of my questions specifically pertaining to this courthouse. 

The attorney will probably advise against arbitration, just to warn you so you aren't thrown off.

Getting information pertaining to how to answer and file your Motion to Compel would be good information, however.

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4 hours ago, fisthardcheese said:

The attorney will probably advise against arbitration, just to warn you so you aren't thrown off.

Most lawyers don't realize that consumers are immune from the fees and costs of arbitration, so they warn against risks that aren't real.

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One thing I hope the lawyer can help me with at the very least is with information regarding the filing. I have been scouring the courts rules especially about filing a motion and I'm getting nothing helpful or any answers on time frames for filing motions or anything for that matter. 

 

I am going into the consultation with the mind frame that they will probably try telling me how to handle the court instead of arbitration even though arbitration is likely the route I'm going to take, but the consultation is free so it can't hurt to get some knowledge.

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18 hours ago, Vinsey said:

One thing I hope the lawyer can help me with at the very least is with information regarding the filing. I have been scouring the courts rules especially about filing a motion and I'm getting nothing helpful or any answers on time frames for filing motions or anything for that matter. 

 

I am going into the consultation with the mind frame that they will probably try telling me how to handle the court instead of arbitration even though arbitration is likely the route I'm going to take, but the consultation is free so it can't hurt to get some knowledge.

If this is just a regular consumer attorney and not someone working at some type of legal aid service, then I would not expect them to be helpful in explaining how to file your own items.

Motions usually have no time frame, only responses to motions do.  This phase of the case is not very difficult.  You need to file your answer within the time given by your court, as this is the only current time-sensitive matter.  After that, the MTC should be filed as soon as you can after the answer but prior to the hearing date.

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So I've been completely stumped on how to format my answer and I may have just realized why: I DON'T HAVE A COMPLAINT. I was served three stapled forms: two of them being the civil summons, the third an affidavit of Portfolio Recovery's Custodian of Records making six statements. Lines 1 and 2 are just stating that she is competent to testify and is an authorized employee of PRA. Lines 3-5 state that the account is now owned by the Account Assignee, the records show that I owe <$3k from account number ending in 7698 as of 2016 . Line 6 states that they believe I am not a minor or an incompetent individual, and declares I am not on active military duty. Basically, all I have is a Civil Summons and an Affidavit.

Is the affidavit what I'm supposed to write my Answer to? I've been searching everywhere for samples of answers so I know how to format mine and after reading a few articles I realized they all say to answer Complaints. After seeing a sample Complaint online, that's much more understandable to write an Answer to than what I've been given.

Thank you so much for taking the time to read this. I truly appreciate all the help you guys have given me so far.

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Can you write out each line word for word (leaving out your personal information). We need a little more information to help you.

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Absolutely. I'm currently working my way through Linda7's Strategy and Steps to Arbitration, and I really hope I'm not being a complete idiot about this. The affidavit is as follows:

AFFIDAVIT

I, the undersigned SUSAN L., Custodian of Records, for Portfolio Recovery Associates, LLC hereby depose, affirm and state as follows:

1. I am competent to testify to the matters contained herein.

2. I am an authorized employee of Portfolio Recovery Associated, LLC, ("Account Assignee") which is doing business at Riverside Commerce Center, 120 Corporate Boulevard, Norfolk, Virginia, and I am authorized to make the statements, representations and averments herein, and do so based upon a review of the business records of the Original Creditor BARCLAYS BANK DELAWARE and those records transferred to Account Assignee from BARCLAYS BANK DELAWARE ("Account Seller"), which have become a part of and have integrated into Account Assignee's business records, in the ordinary course of business.

3. According to the business records, which are maintained in the ordinary course of business, the account, and all proceeds of the account are now owned by the Account Assignee, all of the Account Seller's interest in such account having been sold, assigned and transferred by the Account Seller on 12/22/2017. Further, the Account Assignee has been assigned all of the Account Seller's power and authority to do and perform all acts necessary for the settlement, satisfaction, compromise, collection or adjustment of said account, and the Account Seller has retained no further interest in said account or the proceeds thereof, for any purpose whatsoever.

4. According to the records transferred to the Account Assignee from Account Seller, and maintained in the ordinary course of business by the Account Assignee, 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 with there being no known un-credited payments, counterclaims or offsets against the said debt as of the date of the sale.

5. According to the account records of said Account Assignee, after all known payments, counterclaims, and/or setoffs occurring subsequent to the date of sale, Account Assignee claims the sum of $2,948.88 as due and owing as of the date of this affidavit.

6. Plaintiff believes that the defendant is not a minor or an incompetent individual, and declares that the Defendant is not on active military service of the United States.

Portfolio Recovery Associates, LLC

SIGNATURE

By: SUSAN L., Custodian of Records

NOTARY PUBLIC INFO HERE

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Ok ,so the affidavit is like a documented oath, mainly for record purposes to state "this is true to the best of my knowledge"

What were the other two pages you received?

Also I would suggest to read this thread as well. This is the most up to date arb thread.

 

 

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Okay, gotcha. I'm gonna switch over to that post immediately. The other two pages are just the civil summons. The second page is just a notice about TN exemption law and the 30 day deadline to dispute validity of debt. On the first page, the only thing other than the typical civil summons information (case number, addresses, signatures, etc.) is as follows:

Summon Vinsey S.

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.

What do you make of this? If the affidavit isn't the Complaint....what do I answer?

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Thanks so much for your sample answer, by the way. It truly helps to see what others have done before me.

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It appears to me that the page you referenced in your last post my possibly be the complaint. Again i dont know how your specific court is, or your states rules. To me, I would just submit an answer stating lack of subject matter jurisdiction and use arbitration as your affirmative defense. I would need others to chime in with their opinion before you actually went through what i just stated, as that is just my opinion. There are more seasoned vets around who may be better off reviewing and answering your questions. @fisthardcheese@BV80@Brotherskeeper

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7 minutes ago, MikeB35 said:

It appears to me that the page you referenced in your last post my possibly be the complaint. Again i dont know how your specific court is, or your states rules. To me, I would just submit an answer stating lack of subject matter jurisdiction and use arbitration as your affirmative defense. I would need others to chime in with their opinion before you actually went through what i just stated, as that is just my opinion. There are more seasoned vets around who may be better off reviewing and answering your questions. @fisthardcheese@BV80@Brotherskeeper

I agree that the one in the OP’s last post would have to be the complaint because it demands a judgment.   

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@Vinsey

You need to read both the Tennessee rules of civil procedure and the local court rules. The last link is to a court-approved sworn denial fill-in form. Please take your time to understand what you are required to do under the rules and the deadlines that govern your actions. If you plan to file a motion to compel arbitration, your rules may require you to state an agreement to arbitrate as an affirmative defense in your answer to the complaint. 

http://justiceforalltn.com/content/pro-se-guide

https://www.tncourts.gov/court-rules/218

http://www.tncourts.gov/courts/court-rules2/local-rules-practice

http://justiceforalltn.org/sites/default/files/FINAL - Sworn Denial_0.pdf

 

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On 2/1/2019 at 12:06 PM, Brotherskeeper said:

@Vinsey

You need to read both the Tennessee rules of civil procedure and the local court rules. The last link is to a court-approved sworn denial fill-in form. Please take your time to understand what you are required to do under the rules and the deadlines that govern your actions. If you plan to file a motion to compel arbitration, your rules may require you to state an agreement to arbitrate as an affirmative defense in your answer to the complaint. 

http://justiceforalltn.com/content/pro-se-guide

https://www.tncourts.gov/court-rules/218

http://www.tncourts.gov/courts/court-rules2/local-rules-practice

http://justiceforalltn.org/sites/default/files/FINAL - Sworn Denial_0.pdf

 

Going through the links you provided I got a better Idea what to do, I have the Sworn Denial form filled and ready to file and am working on my MTC right now.

I found someone else in TN that filed an MTC against Midland and in their post they say during their court date, "their lawyers responded, NON-SUIT". So as i'm understanding that essentially means dismissal without prejudice. As much as I would love to win court this time, I want it to be won forever with dismissal WITH Prejudice. I'm not sure all the details in their case but I hope it was something else causing it to be NON-SUIT. 

Here is a link to the article I am talking about here.

 

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That's great that you are starting to kind of understand everything now. Its a journey, but its a journey only you can benefit from. Your hard work and understanding, will only make you a more versatile person. When you go for that first initial meeting with the lawyer you will not be jaded thinking you have to roll over just because you are in the court system. You are now armed with knowledge, Be vigilant in your study's, and double check everything. Like i stated before, you are representing yourself so everything you do reflects you. When this is all said and done you will be extremely proud of what you have accomplished. I promise you!

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On 2/4/2019 at 6:18 PM, MikeB35 said:

That's great that you are starting to kind of understand everything now. Its a journey, but its a journey only you can benefit from. Your hard work and understanding, will only make you a more versatile person. When you go for that first initial meeting with the lawyer you will not be jaded thinking you have to roll over just because you are in the court system. You are now armed with knowledge, Be vigilant in your study's, and double check everything. Like i stated before, you are representing yourself so everything you do reflects you. When this is all said and done you will be extremely proud of what you have accomplished. I promise you!

Very well said!

I would only add to remember that this is a business deal.  Yes, it is personal to you, but it is not personal to anyone else (not the court, the judge, the attorney or the clerks).  Come at this as a business deal.  When talking to the attorney in court, keep it calm and collected and professional.  Let him know that you understand he is just doing a job for his client and that he isn't trying to personally stick it to you (or vice versa).

 

Once you file your MTC, depending on your local court's rules, they MAY not be able to non-suit or drop the case without your agreement.  But for sure once the MTC is granted, that will hold true.  So, if you work this with the goal of just getting that MTC granted by the judge, you will do well.  Also remember that once you file an MTC, everything about the account and alleged debt becomes completely irrelevant.  You are flipping a switch that puts the debt conversation on hold and changes it to a question of whether arbitration is proper or not.  The ONLY question that should be decided by the court after your MTC is filed is whether or not there is a valid arbitration agreement between the parties. If the court finds that there is, they have no choice but to order arbitration.    Many times the attorney will attempt to cloud this issue by continuing to bring up the debt with your and with the court, but all you should do is object to that and gently steer the conversation back to arbitration.

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Okay so a few updates to let you guys know about,

 

Hamilton county general sessions court apparently does not require any sort of answer to a summons whatsoever, they say you just show up. I don't feel comfortable really with that but thats how this court works I guess.

 

I called the local attorneys office to ask what proof or paperwork they have to sue on this lawsuit, he told me that he only handled the paperwork and serving it and I would have to call "Fenton Law Firm", the ones handling the case for PRA. So then I called Fenton and as of earlier this month they are no longer Fenton Law Firm, but they are Weber now. 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 lol. I asked THEM what proof or paperwork they have to sue on this lawsuit and the dude just seemed confused/unable to answer until he stuttered out that they have an affidavit given to them by PRA and its the same one attached to my summons.

 

SO, all they have is an affidavit swearing that they have the legal right to my debt?? 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 attorney I talked to essentially said that if I call them and give them zero information but just asked them for their proof/paperwork that it'll likely just end up NON-SUITed in court. I thought it was all just lazy lawyer advice but I figured whats the harm and tried it, and it seems like they have nothing. Hopefully the guy I talked to reported my calling and asking and they deem me a hassle? IDK what do you guys think?

@fisthardcheese @Brotherskeeper @MikeB35

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