How to respond to summons

Discussion in 'Credit Talk' started by postbro1, May 1, 2008.

  1. postbro1

    postbro1 Member

    Like every other new person here I have no clue where to start with this. I received a summons today (5/1/08) for a bad credit card debt ($3,556) from 2004 (October) from a law firm representing CACH, LLC. This after my calling them to try to make arrangements to pay the debt. I called and asked them to send me the information on the account and they said they would. After about a week or so of not receiving anything from them I called back to ask again for the information. They said they sent it but would do so again in case it got lost. I never received anything and decided to let it sit for a moment while attempted to pay off another bad credit card that was for more. I made the call to them back on 3/11/08 and now I see the papers were filed on 3/13/08. So basically they lied when they said they would send the information (I know that isn't relevant but I am needless to say angry that they are going this route when I obviously was contacting them to make good).

    Prior to this I hadn't received anything from them which was basically because they didn't know where to locate me after my last address on file.

    Basically after all that I just need to know what to do next? I live in California so if anyone knows what a next step should/could be I would appreciate the help. Also, they just left the summons stuck between the door knob and jam. Not handed to me personally. Thanks.
     
  2. apexcrsrv

    apexcrsrv Well-Known Member

    You need to file a responsive or special pleading. A motion for a more definite statement is a good procedural manuever as is a motion to dismiss if they've attached nothing to the Complaint proving it is your debt. An affidavit isn't sufficient typically but, check you state rules.
     
  3. postbro1

    postbro1 Member

    They did attach the complaint for breach of complaint. So I guess that requesting a dismissal is out?

    Maybe I should call a lawyer since I have no clue how to file a responsive or special pleading. What might I even say in them? In the responsive maybe I can say that I never did receive any of the notices informing me of the default (which I didn't because I moved) and therefore was not aware of the attempt to collect the debt by the new plaintiff (CACH, LLC)?

    Also, can they just leave the summons on my door like that? I thought they had to hand it to you?

    By the way the Firm that is suing is an outfit in in San Diego named CIR Law Offices. Anyone ever dealt with them before?
     
  4. rocket1977

    rocket1977 Well-Known Member

    Admit your name and nothing else.

    "Defendant denies the allegations of Paragraph ____ for lack of sufficient information to justify a reasonable belief therein."

    They likely attached Request for Admissions. You need to answer those with the same denial for each request and you must do it soon!
     
  5. postbro1

    postbro1 Member

    There doesn't appear to be anything like Request for Admissions attached.
     
  6. apexcrsrv

    apexcrsrv Well-Known Member

    Not trying to be rude but, based upon your above statements, yes, you need a lawyer.
     
  7. postbro1

    postbro1 Member


    You're not being rude at all.

    I think this is just their way of compelling me to call and talk to them about paying them. Would it be a bad idea to do so? Working out a settlement preemptively with them dismissing the case without prejudice is a good end to the whole thing, correct? If I end up paying a lawyer $3500 to just to end up paying the $3500 anyway doesn't seem satisfactory.

    If I can get them to accept something like $2500 I would be happy with that.
     
  8. apexcrsrv

    apexcrsrv Well-Known Member

    It is their way of making you pay, period. You can attempt to settle but, you must file a responsive or a default will be awarded against you.
     
  9. postbro1

    postbro1 Member

    Right. I will do that this week. Thanks for the info.
     
  10. flacorps

    flacorps Well-Known Member

    Keep in mind that while in many states it's free to answer, in California there is a filing fee to answer unless you can get the court to waive it on account of your indigence.
     
  11. yankees75

    yankees75 Active Member

    My question on this is hasn't the SOL run out on this debt to begin with. What is the date of last activity on this account? From what I know CACH is a CA so I doubt they can produce a written contract. Is the account still an open account or is there a different status shown on the account. I know in California the SOL for written agreements and open accounts if 4 years but 3 years for other. I may be wrong here but it is definately something to check.
     
  12. postbro1

    postbro1 Member

    The General Allegations that the law firm filed with the court says "On or about 10/28/04 Defendant defaulted on the obligation to make monthly payments on the Credit Card Account, and the card was subsequently cancelled." From fair-debt-collection.com:

    California Statutes of Limitation

    Written agreements: 4 years, calculated from the date of breach.

    Oral agreements: 2 years.

    The statute of limitation is stopped only if the debtor makes a payment on the account after the expiration of the applicable limitations period.


    Which one would this be? Also I don't know who or what this website is. Anyone have a reliable site that I can find this out from?

    EDIT: The status of the account on my CR is "Charge Off"
     
  13. yankees75

    yankees75 Active Member

    Did you have to sign anything to obtain the CC?
     
  14. postbro1

    postbro1 Member

    Honestly I don't recall. I probably did. But even if I didn't, from what I've been reading, it is possible that the state of California considers a credit card account a signed contract. I am inclined to believe that the SOL on this is 4 years here in Cailifornia.

    I found this article with someone asking the same question:

    bankrate.com/brm/news/bankruptcy/20050927a1.asp (I don't have 25 posts yet so I can't post links.)

    I went to the Los Angeles Superior Court website and I see that the case is scheduled for an ORDER TO SHOW CAUSE hearing on 09/15/2008. Which is about a month a month shy of when they say I defaulted (10/24/04). But the major question I now have is have they beat the SOL by filing the suit or is it about when we get to court?
     
  15. ccbob

    ccbob Well-Known Member

    The SOL determines when they have to file suit so if they filed the suit before the SOL runs out, the case can take as long as it needs.
     
  16. Dumb Bob

    Dumb Bob Well-Known Member


    What does "on or about" mean? I would look into that.
     
  17. peeper

    peeper Well-Known Member

    Just because someone files a suit against you does not mean they will follow through.If you answer the summons/complaint and word it the right way they may decide not to continue.Ca's use the element of fear which works wonders for them.Ca's should be outlawed.If the original creditor is unwilling to use the legal rights they have to collect on the debt then they should not be able to sell those rights to a third party.The credit card industry,the lawyers,the ca's and the credit reporting companies are all members of the same team.The dollar sign is their mascot!
     
  18. postbro1

    postbro1 Member

    That is exactly what I thought as well. I will be asking for information on when exactly the last date of activity was.
     
  19. TeeVeeDude

    TeeVeeDude Well-Known Member

    My guess would be that it's a lawyer covering his butt. If their records say you had a payment due on 10/28/04 that you didn't make, but you showed up with a receipt showing that the payment was actually due on 10/29/04, they wouldn't want this paragraph to be denied on a technicality. So instead of it being absolutely "on 10/28/04" it is "on or about 10/28/04."
     
  20. Dumb Bob

    Dumb Bob Well-Known Member

    That would be the usual use for "on or about", but the problem here is that the lawyer (actually this should be a person who can swear under oath to provide a foundation, most probably not the lawyer who is filing the suit) is basically admiting that she doesn't know when (or perhaps even if) a payment was made. See: http://en.wikipedia.org/wiki/Business_records_exception

    The above could really matter because what if the JDB reaged the account? At this point, the defendant is taking the word of someone who admits that she doens't know WHEN.
     

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