Help with summons.

This could be good news or bad news...

If this is a real summons, and you can find out by calling the clerk at the court listed in the summons, then you're probably screwed because if it was prepared 5 months ago, they've probably already gotten a default judgment against you.

HOWEVER,

If this was a "pretend" summons intended to scare you into paying, then they have violated the FDCPA in a very famous way and you can sue them for said violation and collect some serious coin. You can tell the difference by asking the clerk if you have had a case against you in the court specified in the "summons." If not, then ka-ching for you!

 

Don't panic. It's not a big deal for the dates not to match up.

"Alias" in this context doesn't mean anything. And "Alias and pluries" summons is the normal mode of business in most courts.

The dates just means the attorney prepared the original complaint on March 25, but didn't fill out the summons until April 22. There could be a lot of reasons for this, none of them are particularly interesting and they are nothing to be concerned about.

The only date that matters is the date you were served. The date the original complaint was typed doesn't matter, nor does the date it was filed in court. The date the summons was created doesn't matter, nor the date it was filed. Only the date you were served is important, because that is when the clock starts on your deadline for filing an answer.

You need to either get a lawyer or become very familiar with your courts rules of procedure.

In most courts a request for an extension of the time to answer will be granted automatically -- once. If I were in your shoes I would check my local rules, and if that is the case I would file such a request immediately. That will give you more time to either learn what you need to know in order to proceed on your own, or get an attorney.

Whatever you do, don't ignore it. That's what they are hoping will happen. The vast majority of debt collection lawsuits get a default judgment because the debtor ignores the suit.

 

If I correctly understand what you wrote, then the problem is that you are responding as if you received a dunning notice from a collection agency. But you aren't being dunned, you have been sued. You have to respond in accordance with the Rules of Civil Procedure for the court where the suit was filed.

Just sending an "I dispute this debt" letter to the attorney is NOT a valid response to a lawsuit. You have to respond to the allegations in their complaint, and you have to answer all of their interrogatories (or object to them). You do that by filing your response with the clerk of court and sending a copy to the attorney.

If you haven't filed anything with the court, you are likely to end up with a judgment against you.

 

What are you expecting the attorney to respond to? You sent an answer and the court set a hearing date.

Did you file a counter claim? Did you file interrogatories? I'm not sure what kind of response you are expecting from the attorney.

It really sounds like you NEED a lawyer. Check with legal aid to see if there is some low-cost service to help you if you can't afford to hire one.

 

summons

Hello, I'm new here so I might be in the wrong thread. I need some help on what to do. I also received a summons from a collections agency for a bll I don't even remember who it is. But, I know it has to be from around four years ago. I haven't been able to work for about four years, and the only income I have is babysitting for $100.00 aweek. I don't know how to respond as it says I have to answer to them in 28 days and to the court in three days. Does anyone know what to do? how do I write the answer?I am really scared!! I have nothing, no property, saving,or nothing, not even life insurance. Will they take my car? its old but its paid for. Please give me whatever info you might have.
Thank you,

 

The problem is that even though we might or do (whatever the case might be) know how to walk someone through the entire process we can't teach you how to do it on the internet even if we were attorneys which most of us are not. I do know how to file a response and I do know how to prepare and send interrogatories, demand for production of documents and admissions even though I am not an attorney so I can't teach you how to do it and wouldn't do it even if I were an attorney. Even if I were an attorney I would have to be authorized to practice law in your state in order to be allowed to help you.

We can give you some general ideas about what you have to do but can't tell you how to actually do it. I seriously doubt that you could find anybody on the internet who would teach you how to do it unless he were an attorney and you hired him to represent you. Then the attorney still wouldn't teach you how to do it but would just do it for you.

The real problem you face is that you really have no viable defense that will work. To be brutally frank, you probably do owe the debt and no simple answer to the court can get around that fact.

But simple answers and simple defenses are not what wins in court. In order to win you have to know and be able to spot the mistakes lawyers normally make and must know how to take the best advantage of them. Someone else suggested that you learn your state rules of civil procedure and also add rules of evidence to that. Add in a good knowledge of FDCPA and FCRA and federal rules of procedure and federal rules of evidence and you might just be able to get a settlement out of them instead of you having to pay them. Without that knowledge you can count on losing and getting a judgment against you. The problem you really face is having to learn all of that within so short a period of time.

About the best you can hope for is making them prove the truth of their claims and even that isn't easy to do in most courts. The cards are heavily stacked against you and finding an attorney who can help you isn't going to be easy to do either. Most will want to try to reach some kind of settlement agreement with the other attorney.

I do wish you the best of luck but unless you can find someone who can and will help you I'm afraid you are likely to have a rough go of it.

 

First off, don't panic. If you really can't remember who this debt is owed to, then you should IMMEDIATELY pull your credit report and do some research. If you haven't pulled your credit reports in the past 12 months, you can get a free one at annualcreditreport.com. If that doesn't work, use a pay service (about $15 / mo; click the "credit reports" tab above).

Once you do that, answer these questions so that we can help you a little better:

1 - What state are you in?
2 - Who is suing you? What company are they representing?
3 - When was the last payment on the debt?
4 - What type of debt is this? Credit card, student loan, car loan, etc.

cap1sucks is right in saying that most of the time, the cards are stacked against consumers. Especially if you're being sued in small claims courts, the tactics of filing complex motions and using "technicality" legal strategies aren't likely to help. BUT I disagree with him in that "you have no viable defense". No offense to cap1sucks, but until we get some more information, we can't say that for certain. For example, if this is a credit card, and you last paid four years ago, and your state's statute of limitations is three years, then you have a pretty solid defense.

Even if you don't have a defense, you may be able to settle without going to court.

But no matter what, the clock is running. You MUST answer the summons, and you MUST answer it quickly - PERIOD. Take a deep breath, have a cup of strong coffee, and relax for 15 minutes. Then dig in. Whatever course of action you pursue, you must do it with a sense of urgency. But desperation and panic will only hurt you.

 

Your disagreement is well taken in that while indeed the things you mention can change the outcome in specific cases and each case is different and should be analyzed in that light.

I was speaking in general terms because most people in court do owe the debt and therefore have no viable defense. Again, the specifics you mention should be used as a check list by each individual to see if any of them apply to his or her case.

 

Summons by Nursing Home:

I have been "summons" I seen that you stated that you should make sure the summons is legit so I contacted the county clerks office. All dates and notories where dated for July 30,2009 and Notory signed August 5th, 2009 but it was not filed into the county clerks until September 2, 2009.
In addition prior to this "summons" the lawyer has written many Collection documents to my now ex husband. We have written responses notorized and sent certified mail in response to there claims. Part of our response was that the Nursing Home has not submitted the requested documents to determine if this is in fact a real debt and that the amounts they are trying to collect are not corresponding to the actual amounts paid towards Mr. John Does Bill.

The First Collection notice to my ex husband was for $35k at they same time I was recieving a bill to collect $20k. They are putting in claims for these amounts to Mr. John Does medical insurance company's Blue Cross Blue Sheild and Medicare.

Things you should know about this debt.

Mr. John Doe is on Medicaid and prior to the application going through. It was determined he had no income and therefore could not pay any of the past debts.

I have power of attorney for Mr. John Doe. Since the June of 2009 I have been requesting by certified mail to both Medicaid and Nursing home the amount Medicaid has paid towards his debt They have both denied providing me with this informaiton.

The information they are presenting to me is a worksheet that Medicaid creates to determine how much of his pension should have gone to the Nursing Facility for his past debt if it was available.

I went to the Department of Social Service on his behalf yesterday 9/28/09 and requested the exact amount of payment provided to the Nursing Home on his behalf and they denied me once again. Stating they do not have that informaition available, I would need to get it from the State billing department.
I mentioned I have already requested this informaiton from the Nursing Home and they too have denied me and their response was that the Nursing Home wouldn't know but I corrected them by stating they are billing people and communicating directly with DSS for payments so they do in fact know what has been paid.

In addition, Prior to Mr. John Does medicaid application going through to cover his past debt, the bill stated "Room and Board for 6-1-09 to 6-30-09" and the elleged cost. Once Medicaid was approved the bill now states Medicaid Income Charges and has never shown the amount medicaid has paid toward his debt.

I have even requested an exempt bill showing all payments on Mr. John Does behalf from all medical insurance companies, DSS and from his pension and they still have not supplied this infromation.

How do I get the amount that Medicaid paid towards the bill sense both are denying me this information?
Do I get a court order?
Summons them?

In the summons they sent me they are stating that I should not have paid his bills or allomony due to his now deceased wife from his pension and therefore I have drefrauded the Nursing Home and that these funds are due to them.

 

Here is your defense in court:


Credit card loans are made and represented
as unsecured loans which grants the creditor no right to restitution via
court action or a judgment process since they are trying to obtain security
for the debt; and that any recovery statement on their contract is
invalidated by the fact that they represented the loan as unsecured.

 

That sounds like a bright idea.

What law or court decision supports that position?Please put my finger on the law that says that because credit cards represented as an unsecured loan the contract is invalidated. I'd sure like to see that law.

 

@cap1sucks

I can't tell if you're are being sarcastic or not. I actually just made that up and if I get my day in court with Sh*tty bank I might try and use that as a defense. Whether it will actually work or not is a different story. In theory it should work as a great defense because by definition of unsecured it means just that.

 

In theory it should work? Sorry but I know differently. Whether it is secured or not doesn't make much difference once it gets to court. If it is a secured debt then they would be more likely to try to use their replevin options before going to court and then sue you for any remaining balance. The idea that they have no right to collect because it is an unsecured debt is pure nonsense. You owe the money regardless of whether it is a secured debt or a non secured debt and valid workable defenses are mighty few and far between.

No, I wasn't being sarcastic. I wanted you to do your own research and in doing so you would most likely be able to figure out for yourself that your idea has no merit. I really didn't want to have to come right out and tell you that.

 

When you go before a judge he'll ask is this your debt,The answer is yes or no.Not that it's unsecured or secured.When the creditor gets a judgement and either garnishes your wages,or puts a lien on your secured property then you might rethink your theory.Just my thought.

 

I've heard more than one person say their judge asked them that question. There is a big problem with judges doing that however. The judge is there for the sole purpose of examining the evidence before him and render a decision based on the evidence before the court. If the judge ask such a question of the defendant he is then failing to do what he is supposed to do. I think a good response to such a question is to ask the judge whether or not s/he has read the evidence before the court. If there is no evidence before the court and there are no affidavits nor affiants then there is no basis for a judgment to be entered against the defendant.

If there is no evidence and no affidavit nor affiant then they have no case and there is no requirement for the defendant to put himself or his assets at risk by responding to such a question. If there is no evidence or actual testimony then the defendant needs to object to the question. If the objection is overruled then the defendant should ask what law requires hm/her to respond to the question. Object again and then ask that the question be certified. If that is refused the next step is demanding that the judge recuse himself/herself. If that is denied then carry it though the recusal process. If that gets denied by the chief judge then its time to take the recusal to the appellate level. In the event the judge tries to threaten the defendant with some reprisal if the refusal continues then the defendant can answer under duress and threat of incarceration thereby making the defendant's response unuseable in court. There are ways around getting railroaded. The defendant just has to be on his toes or get railroaded. It is just that simple.

 

uhm,Thanks so much 4 sharing with us,bros