Hi, I was served a summons for a credit card debt. I checked my credit report and the account that I have with this company does not match the credit card number on the summons. I have been reading this site over and over. I decided to form my answer and to also do a sworn graduated denial. I was also preparing a validation letter to send to the collection agency. As I was preparing all of this, I noticed that I didn't have the case number, so I called the clerk of the court. She informed me that there is no case number, they haven't filed anything with the courts. How is this possible? I told her that on the summons I received that I had a court date of April 14 at 2:00 pm. She said that there was nothing on the docket. She also suggested that I contact the attorneys directly and negotiate with them. I read from here and other places, this is a "no-no". What should I do?
If it is in fact a fake summons, then this is a violation of the FDCPA and you should report the firm to the FTC, state bar, etc. I would still DV them and also send a letter requesting specific information regarding the actual case number, etc. I'm not an attorney, so I think it would also be a good idea to have a lawyer take a quick look at what they sent you to tell you exactly what it is - fake or real. It's impossible to tell without seeing what they sent.
Reporting anything to the FTC, the BBB, the state bar, and most other such entities is about as useful as reporting to the U.S. Department of Agriculture that you have rabbits in your garden. The FTC, the state bar and most other such entities have no power to act on your behalf. If you believe anything the BBB has to say then just ask them about the reputation of Equifax, TransUnion, Innovis, or any other credit reporting agency and see what you get back, keeping in mind the number of complaints people have filed against them over the years. The fact that there is no case number or any case filed don't mean a thing in some states. In some states they can do exactly what you are describing here without breaking any laws. The fact that the account numbers don't match is also meaningless. So what should you do? I'd suggest that you start your informal bankruptcy procedures against the attorney. The first step in that procedure is demand for validation. Your validation letter should say nothing about any laws nor should it make any kind of threats and it shouldn't ask any questions. Just make a photocopy of their letter. If their letter has anything on the back of it then copy both sides so they can't tell it is a photocopy and staple that to your validation letter. Don't call them. I'd call the clerk of the court and see if you can access court records on line. If not then you will have to either call the clerk of the court every day or so to see if they have filed a case against you or not. I'd actually show up for court on that date and see if there have filed a case or not. If they haven't then I'd stay in court while the judge goes through his daily routine docket call and if your name isn't called then I'd stand up, raise my hand and ask the judge why your case was not called. Say you got a letter from Dewey Cheatum and Howe or whatever their name is stating that you had to be in court today. Let the judge tell you what to do. That's one way. Or just see if your name is called and if it isn't then they have provided you with false and misleading information which is a cause of action against the attorney. You could file a federal case against them at that point but if I were in your situation I'd wait for them to make a few more mistakes which they will be almost certain to do before jumping up and filing any federal cases against them. One violation might get the job done and maybe not. You might get a second cause of action if your demand for validation was sent to them within 30 days after their initial contact with you. If that summons was the first then you would have them because they can't possibly validate in 3 or 4 days and so could be accused of illegal continued collection activity if they did show up in court. There are several other factors and they all depend on that initial contact letter and what it said. I'd have to see that initial contact letter to see what it actually said. If the summons was the initial contact letter then it had to say you have 30 days to dispute the debt among other things. You can count on losing in local court but the way to win is by becoming a plaintiff in federal court. Filing against the debt collector or lawyer in federal court is the action I call filing informal bankruptcy and the reason I call it that is because it can get rid of the debt, any resulting judgment, make them do your credit repair for you, get you paid quite well for your time and trouble and force them to go away and leave you alone. That has to be a lot better than filing formal bankruptcy or trying to fix your own credit. It isn't hard to do and it don't take a lawyer or a rocket scientist to do it for you.
Thank you so much for your reply. I was "served" some guy in a jeep. It does in fact on the front page say that it is a summons. There is no signature from the court just in the attorney for plaintiff, which is a scanned signature. It informs me of a court date and the location of the courthouse. Attached to that is the "complaint". iNumber 1 it states my mailing address is my physical address, which is incorrect, I have a PO Box and delivery to my physical address is not possible in my town. The PO will return the letters, this is my first contact with them. Number 2 it states that the amount does not exceed the jurisdiction of the court, #3 gives the account and the name of the credit card (which is Household Bank), #4 states amount plus court costs, and interest, #5 states I obtained goods and services, etc, #6 state I received final invoice on account (not sure about that), #7 says despite proper invoices I failed to remit to plaintiff or plaintiff's assignor the billed amts, #8 states application for credit including the terms constitute express consent and terms and conditions were attached (INTERESTING HERE, THE TERMS AND CONDITIONS ATTACHED WERE FOR A CAPITOL ONE CARD NOT HOUSEHOLD), #9 states the delivery of cards constitutes agreement implied by law to pay plaintiff, #10 delivery of cards and use of cards reasonably knowing that plaintiff intended to charge defendant, #11 plaintiff is entitled to pmt based upon the theory of unjust enrichment, #12 addition of principle amt also seeks award of atty's fees of 180.00. then the Wherefore. It was dated February 17, but not served until April 4th. Then the Capital One terms are attached, where they circle terms. Then an answer which is already filled out and saying I agree to the summons and then their contact info. That's the whole enchilada. I will not call them, but I have only a couple of days left. So I sent the DV via certified, called at the close of court on Friday, still no case. Should I fax the DV as well? Thanks again for your response, I've been anxious to hear your response.
You haven't given me a very important piece of information which is what state you live in. That will probably make a very crucial difference in how you might approach this situation. As you know, I can't give you any legal information whatever but without knowing what state you live in I think I would tend to want to send them the response that I would file with the court if there were an actual case filed. I think I would send them my response, a certificate of mailing and my demand for admissions but I don't see how you could actually file a response to the court. I tend to think that I would just play the game the same way they seem to be playing it. But you must be aware that without knowing the state you live in I could be giving you very wrong information.
Anyone who suggests that you ignore people who are suing you isn't giving you sensible advice. Not responding properly to the summons and complaint will likely just give them a default judgment against you. Often they are required to include what you are supposed to do and how much time you have to do it right there on the summons and complaint. Do that and do it within the required time. What does "DV" mean again? Dumb Bob can never remember all these confusing abbreviations. If it refers to something involving the FDCPA, remember that you are now being sued. This isn't a collection agency anymore, it's a law office. At some point you'll have to talk to them, either now, later at a hearing where they try to figure out what your assets are, or some time in between. The time that is best for you will depend on your situation although at least right now you don't have the judgment over you.
So far that is not in evidence before any court of law. There is no evidence of anyone having been sued by anybody. So what? Both are 3rd party debt collectors and both are required to adhere to FDCPA. [/quote] At some point you'll have to talk to them, either now, later at a hearing where they try to figure out what your assets are, or some time in between.[/quote]Or at one or more hearings before a federal court if the poster chooses to take it that far. So what? That has no bearing on whether or not a case has been filed or anything else at this time. The debt collector/attorney cannot give the poster any legal advice. All the DC/attorney can do is demand money either in a lump sum or in payments. At this time, the only way we can know what is going on is to know what state the poster lives in. New York state has very different laws than say Oklahoma. Although both California and Colorado closely mirror New York state law they are also different in some ways. Laws vary quite a bit from state to state so without knowing what state the poster lives in we can't really begin to understand what is going on or what either the poster or the DC/attorney might be able to do. Right now there is supposed to be a hearing set which the poster supposedly must attend yet there is nothing before the court showing that any case has been filed or any hearing set. All the poster really knows at this point is that somebody drove a jeep up to the home and served what appeared to be a summons. The jeep driver might or might not have been a process server. There isn't any way to know at this time. This poster now has 3 days to appear in court. There isn't time to do anything but just show up at court and take a court reporter to the hearing so that in the event there is a hearing a record of the hearing is preserved. If the judge calls the poster's name at docket call then they will at least be there and can ask for more time to seek legal assistance or whatever but until we have some more facts anything we might offer is nothing but pure conjecture. Joshua was on the right track in having his doubts that this is indeed a real deal. Right now I have to agree with him. But one thing for certain is that calling up the DC/attorney would only be falling into any traps they might have planned. Let's get some more info before we make any silly statements that could end up doing more harm than good.
Hi Again, First off, I'm in Colorado. I called the court today and they now have the summons filed. I sent the DV certified to the attorney. The clerk of the court said that it isn't an appearance, it's the deadline for my reply. So she said that I need to come in and give my reply to the court by 2:00 on Wednesday. So I will give them a copy of the DV I sent to the attorney, the attorney is in Denver. So, in my answer, I will deny the address or paragraph 2, then state that I lack sufficient knowledge of all of the other paragraphs. Should I say anything about the terms and conditions not being for the Household Bank or not? It appears from the amount of interest that they calculated, that this is about 5 years or more of interest. I know that I have not had a credit card in over 5 years. Should I attach a copy of the certified receipt to the answer? Thanks again for all of your help!
OH BOY! You really want to goof it up good, don't you? A DV is not a response to anything. I've seen quite a few folks make that mistake here in Oklahoma. That and of course much worse. Above all, do not even think of filing you DV with the court. That won't get it either. I don't think I would do that So when did you make your last payment to the credit card company? If I remember correctly Colorado has a 6 year Statute of Limitations. If you can raise the SOL defense and prove it you will win. If you don't have the records to prove it maybe you can make them admit the charge off date during discovery. Why would you do that? Don't make no sense to me. Sounds to me like you are going to need a whole lot more of it if you want to get anywhere and you are going to need it real fast. You really need to prepare a good response to the court, a certificate of mailing and a good set of discovery tools. And that just gets the fight started good.
Okay, well I'm very sorry, I guess I misunderstood. So I'm toast, well, oh well. I guess that's the way it is. I won't bother doing anything else at this point since I have really messed this up. It really doesn't matter anyway. I don't know why I even thought I could try. All I know is that this isn't mine, it's not on my credit report. Thank you for your help, I appreciate you trying to explain something to me and I messed it up. I will let you all get back to helping people who are worthy of your help. So sorry to take up your time. Thank you
There are certain things that work in courts and certain things that don't. The first thing that must be understood is that there is only one question before the court at the time the plaintiff files a complaint. That question is whether or not the defendant owes something to the plaintiff. That is the single question that must be responded to. A demand of any kind does not answer or respond to that question. That's why a validation is not a response. You didn't really goof anything up because you can amend your incorrect answer and judges will routinely allow that if you do it correctly, by means of a motion to amend. A responsive answer can take several forms. Since complaints always list a number of accusations defendants can respond to each allegation separately, point by point and can either admit or deny each accusation. That is what most attorneys expect defendants to do and often get quite upset if that don't happen. A response can be a general denial of all accusations or it can be a denial of each and every element of the complaint. A response can be a denial based on the fact that while the defendant might have a moral obligation to pay, the plaintiff waited too long to bring the complaint so it is barred by the statute of limitations. There may very well be other ways to respond that I don't know about or didn't think of at this moment as well. Once the defendant has responded in an appropriate manner then s/he can start the discovery phase unless the plaintiff did that as a part of their complaint or the court does not allow discovery or as in the case of federal courts, neither party can start discovery until ordered to do so by the judge. A debt validation can be presented to the plaintiff's attorney but not logically to the plaintiff once an action has been filed because the plaintiff hired the attorney to take care of those matters. Validation demands must be sent to the attorney within 30 days after the initial contact by the attorney or it has no real value or purpose. Validation can also be demanded during the discovery phase and usually is but is done a bit differently. There are 4 phases to discovery. They are (1.) Interrogatories which is another word for questions. How those questions must be formulated and responded to are covered in the Rules of Civil procedure. The number of interrogatories that can be used are also usually limited to a certain number. They should not be multi-part, confusing, vague, accusatory or call for legal conclusions or be irrelevant to the outcome of the trial. Asking where the defendant or spouse lives, works, banks, and other such questions are irrelevant to the outcome of the trial and can be objected to. (2.)Admissions cannot contain questions. They should be simple statements. For example, admit or deny that the plaintiff has no evidence to support it's claim. Admit or deny that plaintiff performed services for the defendant. Admit or deny that the plaintiff loaned money to the defendant. Those are just examples, (good or bad) that might be used in admissions. (3.) Demand for production of documents. That is pretty self explanatory. One can demand production of statements, notes, agreements, letters and any other kind of documents that might be used at trial. Some attorneys seem to think they can demand the last 10 years of bank statements, income tax records, old addresses, other credit cards or many things but those can be objected to. If the other party refuses to produce the documents they can be compelled to produce them through motions to compel or through subpoena duces tecum. (4.) Depositions are where the parties meet person to person and ask questions of each other. Depositions are very tricky things. They can get downright mean and nasty and no defendant should attempt to conduct discovery unless they have a good deal of knowledge and experience or have an attorney with that experience. I don't think anyone should attempt to conduct or attend a deposition without an attorney although I know of some who have done so successfully without hiring attorneys. They are usually good public speakers who can think on their feet quickly. It isn't for the average person to do that. So, you really haven't goofed anything up that can't be fixed easily. All that you would have to do to get the show turned around is file a motion to amend your answer and it will probably be granted. The problem we all face in court is that most of the time we really have no viable defense. It sounds like you might have a SOL defense. If you do and can prove it somehow then you can win. Another problem we face in court is that of knowing what to do and when to do it plus we most often either can't afford to hire an attorney, can't find a competent attorney or simply don't trust them in the first place. Attorneys cost money because they had to invest a great deal of time and money to learn what they know. Good attorneys with a proven track record are expensive indeed but no matter how good they might be they are limited in what they can do by their code of ethics and their fellow attorneys and judges. There is a definite limit to the dirty tricks they can play. Pro Se litigants have no such restrictions. Most attorneys would never think of recusing a judge except in the most extreme circumstance. A pro se has no such qualms. A pro se can easily trap judges into recusing themselves and keep on recusing them until they get a judge that will treat them fairly and listen to their arguments but doing so takes an awful lot of courage. I know of one pro se who has recused 3 judges in a row and the 4th one was so nice and considerate butter wouldn't melt in her mouth and he won his case against Home Depot. (LOL). On the other hand, he didn't owe Home Depot any money either. Even though we might not be able to afford an attorney or simply don't want to hire an attorney it is best to get the help of someone who may not be an attorney but has a broad range of experience and knowledge about the court systems and the laws in various states. Those kinds of people are well worth their cost (if any and is reasonable) so long as they don't come up with junk legal theories that don't even make common good sense.
