profyt77

Just Received Summons Not Sure how To answer

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1. Who is the named plaintiff in the suit?

CKS Prime Investments, LLC

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

Javitch Block LLC

3. How much are you being sued for?

$16,793.18

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

WebBank

5. How do you know you are being sued? (You were served, right?)

Received Summons via Fedex

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

Mail

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

Yes.

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None

9. What state and county do you live in?

Ohio, Cuyahoga

10. When is the last time you paid on this account?

September 02, 2018.

11. What is the SOL on the debt?

6 years.

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or  looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Newly filed – Just received Summons on 9/20

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 calculated had to be answered by October 17th, since it arrived via fedex on September 20th ( 28 days).

Charges: First Cause of Action (Summarized)
1) Plaintiff acquired, for a valuable consideration, all rights, title and interest in and to the claim set forth below originally owed by the Defendant to Web Bank.

2) There is due to Plaintiff from the Defendant upon an assigned Written Agreement the sum of $19,793.18.

3) A copy of said Written Agreement is attached hereto as Exhibit “A”.

4) Plaintiff notified Defendant of the assignment and demanded that Defendant pay the balance due on the written agreement, but no part of the foregoing balance has been paid.

WHEREFOR, Plaintiff prasy for judgement against Defendant in the amount of $16,793.18 with interest a the statutory rate of 5% per annum from the date of judgement and costs of this action.

No, interrogatory (questionnaire) was received only the Summons.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Exhibit A is: a truth in lending statement, loan summary, and a borrower agreement all from original creditor. NOTHING WITH MY SIGNATURE. 

I am looking for an example of an answer to this as well as some guidance on how to proceed.

Thank you in advance.

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Is there an arbitration clause in the OC agreement?  If so, then arbitration will be your best strategy.  Best info on arb is here:

 

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Getting my answer ready to file but had a question on location. I currently live in Canada and have been for the past few years. I am now a permanent resident of Canada but still have some mail going to a relatives house in the US. Should I be using my Canadian address in correspondence as well as mention that in my answer or MTC arbitration?

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2 minutes ago, profyt77 said:

Getting my answer ready to file but had a question on location. I currently live in Canada and have been for the past few years. I am now a permanent resident of Canada but still have some mail going to a relatives house in the US. Should I be using my Canadian address in correspondence as well as mention that in my answer or MTC arbitration?

Now you have an even better strategy.  If you are a permanent resident of Canada, and not of Ohio, then the Ohio court has no jurisdiction over you.  I would file a motion to dismiss for lack of jurisdiction.

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Sounds like a good idea. I can try that first and if it doesn't work out I can always go the arbitration route. Thanks for your help.

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Here is a sample of the answer I am filing. I will be adding my Canadian address to it when filing.

How does it look? Any suggestions? I threw in the Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter”. Just in case the motion to dismiss for lack of jurisdiction doesn't work I can still file the MTC Arbitration.

 

 

Defendant, appearing pro se, for its reply to the Complaint of CKS Prime Investments, LLC states as follows: All Answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein.

 

ANSWERS

 

  1. Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.
  2. Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.
  3. This request calls for admission of matter defendant has denied and thus it is improper.
  4. Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

 

AFFIRMATIVE DEFENSE

 

As and for a First Defense

Plaintiff admits to purchasing the defaulted debt allegedly owed by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

 

 

As and for a Second Defense

Plaintiff's Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

As and for a Third Defense

Defendant claims a Failure of Consideration as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

As and for a Fourth Defense

Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

As and for a Fifth Defense

Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parol Evidence Rule.

As and for a Sixth Defense

Plaintiff's Complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

 As and for a Seventh Defense

Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

As and for an Eighth Defense

The Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

As and for a Ninth Defense

Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them.

 

As and for a Tenth Defense

Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

As and for a Eleventh Defense

Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter

 

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Almost forgot to add my certificate of service....This is what i was planning on going with:

CERTIFICATE OF SERVICE

 

The undersigned certifies that the above documents were served on all parties or their counsel in the above cause by depositing a copy in a FedEx envelope addressed to Brian C Block, 1100 Superior Avenue 19th Floor, Cleveland, OH 44114-2518, on 10/10/2019.

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I would not file that answer.  Filing the answer is submitting to the court's jurisdiction.  Most of the defenses, except for arbitration, won't work, anyway.

You need to file a MOTION to dismiss the case for lack of personal jurisdiction - meaning, you do not live in Ohio.  See Rule 12(B) of the Ohio Rules of Civil Procedure:

(B) How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19 or Rule 19.1. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56. 

I have bolded the applicable part.  

If you do not live in Ohio, then an Ohio court has no jurisdiction over you.   You need to attach proof of Canadian residency to your motion.

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RULE 3. Commencement of Action; Venue

(C) Venue: where proper. Any action may be venued, commenced, and decided in any court in any county. When applied to county and municipal courts, “county,” as used in this rule, shall be construed, where appropriate, as the territorial limits of those courts. Proper venue lies in any one or more of the following counties:

(1) The county in which the defendant resides;

(2) The county in which the defendant has his or her principal place of business;

(3) A county in which the defendant conducted activity that gave rise to the claim for relief;

(4) A county in which a public officer maintains his or her principal office if suit is brought against the officer in the officer’s official capacity;

(5) A county in which the property, or any part of the property, is situated if the subject of the action is real property or tangible personal property;

(6) The county in which all or part of the claim for relief arose; or, if the claim for relief arose upon a river, other watercourse, or a road, that is the boundary of the state, or of two or more counties, in any county bordering on the river, watercourse, or road, and opposite to the place where the claim for relief arose;

(7) In actions described in Civ.R. 4.3, in the county where plaintiff resides;

(8) In an action against an executor, administrator, guardian, or trustee, in the county in which the executor, administrator, guardian, or trustee was appointed;

(9) In actions for divorce, annulment, or legal separation, in the county in which the plaintiff is and has been a resident for at least ninety days immediately preceding the filing of the complaint;

(10) In actions for a civil protection order, in the county in which the petitioner currently or temporarily resides;

(11) In tort actions involving asbestos claims, silicosis claims, or mixed dust disease claims, only in the county in which all of the exposed plaintiffs reside, a county where all of the exposed plaintiffs were exposed to asbestos, silica, or mixed dust, or the county in which the defendant has his or her principal place of business.

(12) If there is no available forum in divisions (C)(1) to (C)(10) of this rule, in the county in which plaintiff resides, has his or her principal place of business, or regularly and systematically conducts business activity;

(13) If there is no available forum in divisions (C)(1) to (C)(11) of this rule: (a) In a county in which defendant has property or debts owing to the defendant subject to attachment or garnishment; (b) In a county in which defendant has appointed an agent to receive service of process or in which an agent has been appointed by operation of law

[snip]

(E) Venue: no proper forum in Ohio. When a court, upon motion of any party or upon its own motion, determines: (1) that the county in which the action is brought is not a proper forum; (2) that there is no other proper forum for trial within this state; and (3) that there exists a proper forum for trial in another jurisdiction outside this state, the court shall stay the action upon condition that all defendants consent to the jurisdiction, waive venue, and agree that the date of commencement of the action in Ohio shall be the date of commencement for the application of the statute of limitations to the action in that forum in another jurisdiction which the court deems to be the proper forum. If all defendants agree to the conditions, the court shall not dismiss the action, but the action shall be stayed until the court receives notice by affidavit that plaintiff has recommenced the action in the out-of-state forum within sixty days after the effective date of the order staying the original action. If the plaintiff fails to recommence the action in the out-of-state forum within the sixty day period, the court shall dismiss the action without prejudice. If all defendants do not agree to or comply with the conditions, the court shall hear the action. If the court determines that a proper forum does not exist in another jurisdiction, it shall hear the action.

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How did they serve you in Canada?  Who signed for the FedEx delivery?

Before I did anything with this, I would contact a consumer attorney in OH who does FDCPA work.  I would just explain your residence status and how service was perfected.  There may not be an issue here, but if the attorney feels like they sued you in the wrong venue he may take the case for no up front cost to you as this would be an FDCPA violation and they can collect their fees from the Plaintiff.

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I can give that a shot. It was served via FedEx to my mothers house whee i sometimes gt mail delivered in the states. She signed for it. I will reach out to an attorney and see what ideas they have. Thanks to all of you for your help. This has been quite the learning experience.

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FedEx seems to be quite an unreliable service.  How can the Plaintiff get an affidavit from FedEx on exactly who was served.  I don't think that is proper, but I've seen crazier I suppose.

I would definitely call a consumer attorney in OH, especially with your proof of residency in Canada and with this suspicious service via FedEx, I think they may be able to get this case dismissed for you for hopefully no money from you.

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Just wanted to give an update. Spoke to a few firms and some had better ideas than others. The one that seemed to have an actual game plan pretty much said:

1. File an amended answer

2. File Motion for More Definitive Statement

3. File In  regards to improper service due to my location being in Toronto not Cleveland.

4. If they are not playing ball move to the arbitration route and get them tied up in that until it makes sense to either dismiss or settle.

 

Doe this sound like a decent strategy? The others were mostly trying to get me to do a lump sum settlement and payment plans. This was the only one that actually said lets try something different.

 

Thanks for all the help I have been getting. I am learning so much.

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I am not sure the point of a more definitive statement if you are going to say that service was improper and that the court has no jurisdiction due to your residency in Canada.

The fact that most attorneys didn't even want to bother because there is not money involved in this case is exactly how and why these collection attorneys can continue to use sewer service and not follow protocol to get their default judgement.

I think you must attack the service.  I think they may have a hard time proving WHO and HOW service was made because they used fedex.  Presumably fedex isn't going to provide the usual affidavit of service describing how and whom they served might get the case tossed.  Hopefully you will be able to do this without appearing in person.

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@fisthardcheese, @BV80, @Brotherskeeper, @nobk4me

 

So this is my first run at the motion to dismiss. Can i get some critique or suggestion before I actually proceed with filing? Thanks in advance.

 

 

MOTION TO DISMISS

 

Pursuant to State of Ohio rules, Defendant hereby moves the court to dismiss Plaintiff’s complaint with prejudice. The bases for this Motion are set forth below.

 

FACTS

 

1.      The Defendant is a Permanent Resident of Canada and therefore motions to dismiss this case for lack of personal jurisdiction. (See Exhibit 1)

 

2.      Plaintiff served Defendants Mother at her address on 09/20/19 for which she signed.

 

3.      Defendant was never actually served.

 

4.      Due to Defendant residing in Canada the service was improper.

 

 

 

 

ARGUMENT

 

1.      The Defendant does not live in Ohio so Ohio courts have no jurisdiction over the Defendant.

 

2.      Rule 12(B) of the Ohio Rules of Civil Procedure: (B) How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19 or Rule 19.1. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56. 

 

3.      Rule 3(C) of the Ohio Rules of Civil Procedure: (C) Venue: where proper. Any action may be venued, commenced, and decided in any court in any county. When applied to county and municipal courts, “county,” as used in this rule, shall be construed, where appropriate, as the territorial limits of those courts. Proper venue lies in any one or more of the following counties:

(1) The county in which the defendant resides;

(2) The county in which the defendant has his or her principal place of business;

(3) A county in which the defendant conducted activity that gave rise to the claim for relief;

(4) A county in which a public officer maintains his or her principal office if suit is brought against the officer in the officer’s official capacity;

(5) A county in which the property, or any part of the property, is situated if the subject of the action is real property or tangible personal property;

(6) The county in which all or part of the claim for relief arose; or, if the claim for relief arose upon a river, other watercourse, or a road, that is the boundary of the state, or of two or more counties, in any county bordering on the river, watercourse, or road, and opposite to the place where the claim for relief arose;

(7) In actions described in Civ.R. 4.3, in the county where plaintiff resides;

(8) In an action against an executor, administrator, guardian, or trustee, in the county in which the executor, administrator, guardian, or trustee was appointed;

(9) In actions for divorce, annulment, or legal separation, in the county in which the plaintiff is and has been a resident for at least ninety days immediately preceding the filing of the complaint;

(10) In actions for a civil protection order, in the county in which the petitioner currently or temporarily resides;

(11) In tort actions involving asbestos claims, silicosis claims, or mixed dust disease claims, only in the county in which all of the exposed plaintiffs reside, a county where all of the exposed plaintiffs were exposed to asbestos, silica, or mixed dust, or the county in which the defendant has his or her principal place of business.

(12) If there is no available forum in divisions (C)(1) to (C)(10) of this rule, in the county in which plaintiff resides, has his or her principal place of business, or regularly and systematically conducts business activity;

(13) If there is no available forum in divisions (C)(1) to (C)(11) of this rule: (a) In a county in which defendant has property or debts owing to the defendant subject to attachment or garnishment; (b) In a county in which defendant has appointed an agent to receive service of process or in which an agent has been appointed by operation of law

4.      Rule 3(E) of the Ohio Rules of Civil Procedure: Venue: no proper forum in Ohio. When a court, upon motion of any party or upon its own motion, determines: (1) that the county in which the action is brought is not a proper forum; (2) that there is no other proper forum for trial within this state; and (3) that there exists a proper forum for trial in another jurisdiction outside this state, the court shall stay the action upon condition that all defendants consent to the jurisdiction, waive venue, and agree that the date of commencement of the action in Ohio shall be the date of commencement for the application of the statute of limitations to the action in that forum in another jurisdiction which the court deems to be the proper forum. If all defendants agree to the conditions, the court shall not dismiss the action, but the action shall be stayed until the court receives notice by affidavit that plaintiff has recommenced the action in the out-of-state forum within sixty days after the effective date of the order staying the original action. If the plaintiff fails to recommence the action in the out-of-state forum within the sixty day period, the court shall dismiss the action without prejudice. If all defendants do not agree to or comply with the conditions, the court shall hear the action. If the court determines that a proper forum does not exist in another jurisdiction, it shall hear the action.

 

 

 

CONCLUSION

 

For the reason stated above, Defendant’s Motion to Dismiss should be granted.

 

 

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So i am thinking i messed up.

I filed my initial answer since i was running out of time. Do i file the motion to dismiss now or did i mess that up by filing an answer? I am reading contradicting information so pretty unsure at this point.

 

If I am unable to file the motion to dismiss at this point what would be my next best step (Discovery, Move to arbitration)

 

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I would file the motion to dismiss.  The worst thing the court could do is deny it, so you can move on to arb. (You would also have a great issue for appeal.)  The best thing the court can do is grant it.  If you don't file the motion, it can't be granted.

Be sure to check the court's local rules (usually found on the court's website) to see if the court has any special rules that need to be followed, in addition to the Ohio Rules of Civil Procedure.

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I would ease up on the FRCP citations (presumably the court knows the rules and doesn't need the laid out in full) and I would add in as much information about my residence as possible.  In your "argument" you state nothing about your residence status or how service was supposedly made.  In fact I would be very careful in using the word "served" at all.  Such as how you said your mother was "served".  She simply received a fedex delivery with your name on it. 

I would also include an affidavit that is notarized that says your address in Canada, that you are a permanent resident and how long you have lived there.

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Thanks. I am going to work on it tonight and fine tune it and get my affidavit together with all of my proof. I really appreciate the help you all have provided. 

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Just wanted to give an update and a big thanks to @fisthardcheese, @BV80, @Brotherskeeper, @nobk4me

I  submitted my revised Motion to Dismiss along with my affidavit which was notarized by an Attorney in Toronto that included my Permanent Residency status docs from Canada along with my Canadian government issued ID. It took about 2 weeks after submission for a response but I have now received Notice of Voluntary Dismissal filed by the plaintiff.

I could not have done this without the help of the board members here and just want to again say thanks so much for your knowledgeable help with my case.

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Excellent outcome!  

Now, with the amount of the debt ($16K), you might want to consider options if they try to pursue you in Canada.  I don't know if this JDB is legally allowed to do business in Canada.  If not, maybe they can sell the debt to a JDB that is?  I know nothing about Canadian debt collection law.  I would suggest consulting with a lawyer in Canada.  

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Looks like I may have spoken to soon. They are doing something very odd now. 

So Friday They filed the case is dismissed with prejudice via there notice of voluntary dismissal. I should be receiving a copy in the mail either today or tomorrow.

But 

Yesterday they filed for a CMC which is strange since they already filed to dismiss the case. Why do we need to do a CMS? Since they filed for dismissal do I need to even call into this or is it a last attempt to see if they can do anything with my case?

CMC BY PHONE SET FOR 12/11/2019 AT 03:30 PM. PLAINTIFF'S COUNSEL, OR PLAINTIFF, IF PROCEEDING PRO SE, SHALL INITIATE THE CONFERENCE CALL WITH ALL OTHER PARTIES, AND THEN CONTACT THE COURT'S STAFF ATTORNEY, CARA KOZYK, AT 216-555-5555 PLEASE DO NOT APPEAR IN PERSON.

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Hard to say what it is about or if it is maybe just part of the auto-pilot mode these cases get into that wasn't cleared out.  Give it a few days and check the status again and see what it looks like.  If the Dismissal is still filed and not withdrawn I would not worry too much but just keep an eye on it.

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