Question on Summons -- Discover Card
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  1. #1
    Join Date
    Jun 2003
    Posts
    26

    Question on Summons -- Discover Card

    I received a District Court Summons from a Law Firm/Debt Collector in regards to my delingent Discover Card account ($3200now/original $1200). This firm has never contacted me regarding payment on this collection. The Summons was the first I had heard from them. I have the Answer to my summons all prepared and would like to know if I need to state the fact that this is my first contact with the Law Firm or does that matter now?

    My last payment was in 2005 so it's not out of the SOL.

    Any info is greatly appreciated.


  2. #2
    Join Date
    Oct 2006
    Posts
    207
    Side issue, but possibly relevant:

    Does you state require a collection agency to be licensed and bonded? Many states do, and if they are violating state laws that would be relevant in an answer to a summons for debt collection. Some states require a $10,000 bond and a license.

    You can look up this information for your state here on Why Chat's site:

    http://whychat.5u.com/States/states.html

  3. #3
    Join Date
    Feb 2007
    Posts
    852
    Section 803(2) of the FDCPA, 15 U.S.C. § 1692a(2), defines the term "communication" as "the conveying of information regarding a debt directly or indirectly to any person through any medium." In its Staff Commentary, Commission staff stated that the term "communication" "does not include formal legal action (e.g., filing of a lawsuit or other petition/pleadings with a court; service of a complaint or other legal papers in connection with a lawsuit, or activities directly related to such service)."

    If it's yours pay it before it's a judgment.

  4. #4
    Join Date
    Oct 2006
    Posts
    207
    Do not take the advice of the collection agency in post # 3 above. It must be proven to be accurate, it must be proven to be yours, and it must be proven the agency trying to collect is legally able to collect in your state, it must be proven the account is accurately reported....

    Do not just bow down to the collection agency. They probably paid a few pennies for your debt, and they want to collect $3200?

  5. #5
    Join Date
    Jan 2007
    Posts
    1,483
    While post #3 is definitely dead wrong, so is the idea that violation of any law by the plaintiff will provide you with a viable defense.

    I grant you that if the plaintiff is a 3rd party debt collector who has failed to comply with state license laws your mentioning that fact to the judge verbally might get you a continuance until such time as the plaintiff can prove to the court that they are in compliance.

    I've even heard stories claiming that the judge would only give them 30 days to comply before dismissing the case. But the chances that any violation of law by the plaintiff will help your case are slim indeed and your reliance upon them will only help lead the court to believe that you have no defense.

    You say you have your answers prepared. Exactly what are your answers?

    I do hope that you understand that simply answering the plaintiff's complaint is not going to be sufficient unless you also have prepared some good affirmative defenses in a separate document.

    Are you also prepared to send interrogatories, admissions and demand for production of documents to the plaintiff at the same time you file your answer and affirmative defenses with the court?

    Have you prepared any motions to dismiss which you also intend to file at the same time you file your answers?

    What about the possibility of filing a federal case against the plaintiff for violations of FDCPA, FCRA or SEC violations? Have you any grounds for filing such action(s)? Although it does work in rare instances, filing counter suits in your local court will usually get you nowhere. Local courts seldom pay any attention to such counter suits.

    Does the plaintiff have any valid proof (accounting) of his claim? If so, what does that proof consist of?

    Does the plaintiff have any affidavits before the court? If so does the Plaintiff plan to simply rely on his affidavit or does he plan to have the affiant in court to testify? If he has filed an affidavit with the court have you examined it carefully for any possible errors or obvious falsehoods?

    Do you plan to challenge any affidavits or evidence presented to the court? If so what will those challenges be? Simple denials of the plaintiff's complaints or allegations will not be sufficient to win.

    Has the plaintiff violated any rules of procedure or evidence? If so, which ones and how did he violate them?

    Rules of evidence and procedure are your best friends in court. Learn them and use them effectively and you might stand a chance.

    Does the complaint include all indispensable parties? In short, is the plaintiff the party of true first interest in the case? If not you might consider filing motion to dismiss for failure to include all indispensable parties.

  6. #6