drj93

A Law firm representing Jefferson Capital Systems LLC sent me a summons in the mail

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Greetings,
 
A Law firm named Berndt & Associates representing Jefferson Capital Systems LLC, whom bought the debt from Fifth Third Bank sent me a letter the end of this past summer trying to collect a credit card debt. I sent the firm an email provided on the law firm's website (info@berndtlegal.com) stating that I can not afford to pay them, due to me having health issues, barely able to work part time and I just scrape by month to month (the letter was a couple of paragraphs and more explanatory).  I sent it in text form as well as an attached PDF. I never received any type of reply or letter after.
 
Fast forward to this past week, about 5 months later and I received a letter in the mail with a court summons, with Second typed in under it, I have attached a picture of the top of the form. Berndt & Associates also  filed a motion for a second summon s with a motion stating "Defendant evading service." in the 2nd box. Also included was a complaint with 7 lines as well as stating: WHEREFORE, Plaintiff prays for Judgment against Defendant(s) in the sum of...$ There was also an ORDER REGARDING ALTERNATE SERVICE asking for electronic certified mail-RRR.  There was a bill of sale from Fifth Third to Jefferson Capital, as well as a few pages of mostly redacted sales document with my information included. The next day I had a note in my mail box that missed a certified mail that was to be signed for, assuming from them, since it is from the same city as the law office.
 
 I never received a First summons, I'm confused as to why I received a Second alleged summons though. I have a record of the email that I sent to Berndt & Associates , can I present that as evidence? Also, can I ask to see the received email from their end, since I sent it to the email provided on the law firm's website? With this presented, does this mean that they are providing false information on the summons stating "defendant evading service"?
 
I have had a debt collection lawyer,use dirty tactics in the past and ultimately was involved in 2 class action lawsuits against them, but that was after they ruined my life for a bit. I don't want to let this happen again. Can you please help me? 

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39 minutes ago, drj93 said:

sent the firm an email provided on the law firm's website (info@berndtlegal.com) stating that I can not afford to pay them, due to me having health issues, barely able to work part time and I just scrape by month to month (the letter was a couple of paragraphs and more explanatory).  I sent it in text form as well as an attached PDF. I never received any type of reply or letter after.

You never received a reply for two reasons.  The most important one is that those general email boxes are never checked.  Rarely if ever.  The second is they don't care why you didn't pay.  Unless you had filed bankruptcy all the reasons you listed are sad and understandable but no a legal defense to not paying a debt.  Under debt collection laws they are not obligated to respond to contact from a consumer of that nature.  Did you actually dispute the debt or only explain why you couldn't pay?

41 minutes ago, drj93 said:

I'm confused as to why I received a Second alleged summons though. I have a record of the email that I sent to Berndt & Associates , can I present that as evidence?

You can but it doesn't explain why they believe that you are evading service.  Is the address on the summons where you live?  

42 minutes ago, drj93 said:

Also, can I ask to see the received email from their end, since I sent it to the email provided on the law firm's website? With this presented, does this mean that they are providing false information on the summons stating "defendant evading service"?

The email you sent is not relevant in relation to the lawsuit being filed and serving of the summons.  If the process server made several attempts to serve you at your legal residence they can file for alternate service such as mail, publication etc.  

44 minutes ago, drj93 said:

Can you please help me?

Is this in relation to a loan or credit card debt?  How much is it for approximately?  NOT exactly.  

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Take a look on the court website to see if there is a lawsuit filed against you that matches the cause/case number stated at the top right of that notice. If there is, this lawsuit is legit, and they aren't pulling a 'fast one'.

Bottom line is you owed a debt to Fifth Third, FT sold it to Jefferson, and now Berndt, as the lawfirm representing Jefferson has filed a lawsuit against you. Your only possible defenses are that it's mistaken identity/ID theft, the SOL has expired, or you have some proof showing you paid the debt in full before they sued you. 

Because it's a debt buyer suing you, there's an excellent chance of using arbitration, if available in your original credit agreement, to make Jefferson dismiss their lawsuit and walk away.

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10 hours ago, Harry Seaward said:

Take a look on the court website to see if there is a lawsuit filed against you that matches the cause/case number stated at the top right of that notice. If there is, this lawsuit is legit, and they aren't pulling a 'fast one'.

Bottom line is you owed a debt to Fifth Third, FT sold it to Jefferson, and now Berndt, as the lawfirm representing Jefferson has filed a lawsuit against you. Your only possible defenses are that it's mistaken identity/ID theft, the SOL has expired, or you have some proof showing you paid the debt in full before they sued you. 

Because it's a debt buyer suing you, there's an excellent chance of using arbitration, if available in your original credit agreement, to make Jefferson dismiss their lawsuit and walk away.

How would I go about getting the original credit agreement? Would I file a Motion to ask the firm to provided it? 

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On 1/12/2020 at 8:13 PM, Harry Seaward said:

Take a look on the court website to see if there is a lawsuit filed against you that matches the cause/case number stated at the top right of that notice. If there is, this lawsuit is legit, and they aren't pulling a 'fast one'.

Bottom line is you owed a debt to Fifth Third, FT sold it to Jefferson, and now Berndt, as the lawfirm representing Jefferson has filed a lawsuit against you. Your only possible defenses are that it's mistaken identity/ID theft, the SOL has expired, or you have some proof showing you paid the debt in full before they sued you. 

Because it's a debt buyer suing you, there's an excellent chance of using arbitration, if available in your original credit agreement, to make Jefferson dismiss their lawsuit and walk away.

There is arbitration mentioned in the original credit agreement with Fifth Third. How would I proceed?

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Take a read through the first few posts of this thread I'm linking to, but does your arbitration agreement say anything about "smal claims court", and were you sued in "smal claims court"?

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/

 

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2 hours ago, Harry Seaward said:

Take a read through the first few posts of this thread I'm linking to, but does your arbitration agreement say anything about "smal claims court", and were you sued in "smal claims court"?

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/

 

Thank you, very informative. I have not been sued, yet. I was just mailed a summons and a complaint. I have about 3 and a half weeks to respond in writing to the court. (28 days in total, since the summons was mailed. I'm weighing my options. At the time I had this card I made great money, then had some health issues causing me to lose my job. I had a really hard time securing a full time job after, due to my health, as well as my fiance having seizures, having to stay home when they happened as well as drive her. Now we don't have a car, because we can't afford one and barely get by. 

The Arbitration agreement does not say anything about a small claims court. Here is what is states:

ARBITRATION AND JURY TRIAL WAIVER


NOTE: If you are a Covered Borrower under the Military Lending Act Regulations, you are not required to submit to
arbitration in the case of a dispute.


If you were a Covered Borrower under the Military Lending Act Regulations with regard to any prior agreement, this
arbitration clause does not cover any claims related to that prior agreement.


29. Claim. Any claim, dispute or controversy between you and us arising from or relating to this Agreement, any prior agreementthat you may have had with us or the relationships resulting from the Agreement or any prior agreement, including the validity,enforceability or scope of this provision, the Agreement or any prior agreement. Claim includes claims of every kind and nature, including but not limited to initial claims, counterclaims, cross-claims and third-party claims and claims based upon contract, tort, fraud and other intentional torts, statute, common law and equity. The term Claim is to be given the broadest possiblemeaning and includes, by way of example and without limitation, any claim, dispute or controversy that arises from or relatesto (a) the Account created by the Agreement or any prior agreement or any balances on the Account, (b) the Card, (c) the EFTservices or Ready Reserve Overdraft Protection feature, (d) advertisements, promotions or oral or written statements related to the Card, the Account or the terms of financing, and (e) your use of the Card and the Account.


If you are a Covered Borrower, you and we will only arbitrate if you choose to arbitrate. We cannot elect to arbitrate a Claim with a Covered Borrower. If you are not a Covered Borrower, you and we each agree that any Claim will be arbitrated instead oflitigated in court under the circumstances and procedures set forth below. If arbitration is elected, any Claim will be resolved pursuant to this provision and the American Arbitration Association (“AAA”) rules and procedures (“Rules”) in effect at thetime the Claim is filed. (If for any reason the AAA is unable or unwilling or ceases to serve as arbitration administrator, another nationally recognized arbitration organization utilizing similar rules and procedures will be substituted by us.)


With respect to Claims covered by this provision, if you have asserted a Claim in a lawsuit in court you may elect arbitration with respect to any Claim subsequently asserted in that lawsuit by any other party or parties. If we have asserted a Claim in a lawsuit in court, we may elect arbitration with respect to any Claim subsequently asserted in that lawsuit by any other party or parties, only if no other party is a Covered Borrower.


IF ARBITRATION IS CHOSEN WITH RESPECT TO A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM, OR TO ENGAGE IN PREARBITRATION DISCOVERY EXCEPT AS PROVIDED FOR IN THE AAA RULES. FURTHER, YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION. EXCEPT AS SET FORTH BELOW, THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING. NOTE THAT OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION.


The AAA Rules and forms of the AAA may be obtained by calling 1-800-778-7879 or by visiting the AAA’s Web site at www.adr.org. All Claims must be filed at any AAA office.
There will be no authority for any Claims to be arbitrated on a class action basis. Any arbitration hearing that you attend will take place in the federal judicial district in which you reside. At your written request, we will temporarily advance up to $500 towards the filing, administrative and/or hearing fees for any Claim that you may file against us after you have paid an amount equivalent to the fee, if any, for filing such a Claim in state or federal court (whichever is less) in the judicial district in which you reside. At
the conclusion of the arbitration, the arbitrator will decide who will ultimately be responsible for paying the filing, administrative and/or hearing fees in connection with the arbitration. Unless inconsistent with Applicable Law, each party will bear the expense of that party’s attorneys’, experts’ and witness fees, regardless of which party prevails in the arbitration.


This provision is made pursuant to a transaction involving interstate commerce and will be governed by the Federal ArbitrationAct, 9 U. S. C. §§ 1 et seq., as amended (“FAA”). The arbitrator will apply applicable substantive law consistent with the FAA and applicable statutes of limitations and will honor claims of privilege recognized at law. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision will be final and binding, except for any right of appeal provided by the FAA and except that, if the amount in controversy exceeds $100,000, any party can appealthe award to a three-arbitrator panel administered by the AAA, which will reconsider de novo any aspect of the initial awardrequested by the appealing party. The decision of the panel will be by majority vote. The costs of such an appeal will be borneby the appealing party regardless of the outcome of the appeal.


As solely used in this provision, the terms we and us will for all purposes mean Fifth Third Bank, all of its parents, wholly- or majority-owned subsidiaries, affiliates, predecessors, successors and assigns, and all of their independent contractors, agents, employees, directors and representatives.


This provision will survive termination of your Account, as well as the repayment of all outstanding amounts incurred inconnection with this Agreement. If any portion of this provision is deemed invalid or unenforceable under any law or statuteconsistent with the FAA, it will not invalidate the remaining portions of this arbitration provision or the Agreement. In the event of a conflict or inconsistency between the AAA Rules and this arbitration provision, this provision will govern.

 

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22 minutes ago, drj93 said:

I have not been sued, yet. I was just mailed a summons and a complaint.

Check to see if the complaint has been filed with the court.  If it has, you have been sued.  

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You're in good shape with regard to the arbitration clause. Follow the steps from the thread i linked to and they should dismiss the lawsuit. 

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3 hours ago, Harry Seaward said:

You're in good shape with regard to the arbitration clause. Follow the steps from the thread i linked to and they should dismiss the lawsuit. 

Will do, this is very helpful. Thank you!

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