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Discussion in 'Credit Talk' started by inneed, Dec 6, 2008.
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Nothing you can really do except appear in court. The creditor is still within NC's SOL time to sue you. If you don't appear they'll get a default judgment against you which will probably result in wage garnishments and bank account freezes. To avoid your bank account being frozen just close that bank account and pay your bills with money orders. If your employer drectly deposits your pay ask them to issue you paper checks, and cash them.
Quite so but the poster's problem is not only whether or not to appear but how to appear. If the poster just shows up in court he will have no defense and the judge may refuse to even let him speak on his/her own behalf. So what is needed is to respond to the summons in writing and start working up something that at least resembles a defense of some kind. If that is done then an appearance in court is usually wasted time.
in the dark...totally
On the summons.....there is no court date or anything like that...it just says that a civil action has been commenced against you...then it says to 1.serve a copy of your written answer to the complaint upon the plaintiff or plaintiffs attorney within 30 days after you have been served. You may serve your answer by delivering a copy to the plaintiff or by mailing it to the plaintiffs last known address. 2.File the original of the written answer witht he clerk of superior court of the county named above.
If you fail to answer the complaint, the paintiff will apply to the court for the relief demanded in the complaint.
The amount is 1566.00.....
Is there a form to fill out that I could get online or a sample letter to go by...I just dont know what to do--never had this to deal with!
It never ceases to amaze me that people seem to think that there is or should be a simple form or letter that can be obtained on line which they can fill out and send to the court and to the Plaintiff's attorney.
Fact of the matter is that there are untold numbers of such forms or letters to be found on the internet, in books and even in some newspapers yet they don't realize what they are looking at. It is just as well because the vast majority of them lost the case they were prepared for. The number of such nonsense pleadings available on the internet is indeed mind boggling.
In many cases they may have had a good argument that should have won the case for them but the defendants and even pro se plaintiffs failed to follow some rule or did some foolish thing that lost the case for them. Cases are not usually won or lost because of who defaulted or who breached the contract but because one of the combatants failed to do that which should have won the case or failed to follow some rule of procedure or other and it is usually the defendant in debt collection who fails to do what needed to be done to win the case.
In most cases the defendants is going to lose the case in local court no matter what they do. That is because there is one and only one question before the court and that is whether or not the defendant owes the money and of course, they almost always do. So defendant's face an almost hopeless case before they ever start.
If you had a perfect form or letter to send to the court what else would you do? A response isn't enough. You have to do much more than that to be able to win against a seasoned attorney.You also have to prepare a certificate of mailing and if you hope to get anywhere you also have to send a good set of admissions, interrogatories, and demand for production of documents. You won't find those on line that I know of. A good set of admissions (for instance) will consist of at least 25 or more statements that you demand that the plaintiff admit to. The more the better. That set of admissions should be divided into two parts. The first half will ask that the plaintiff admit to statements that he is almost certain to admit to. The second part will be composed in such a way that an admission or denail to one of the questions in the first part will contradict the answer to the same question asked another way in the second half. Getting those questions properly phrased is tricky indeed. The same scenario is commonly used in psychiatric evaluation tests. Every such test always has at least two and usually even 3 or 4 questions that are exactly te same but phrased in a different way. If you are able to remember the sequence of those similar questions you can make the results of the psychiatric examination come out any way you want them to. Attorneys are not likely to tumble to the fact that they are being trapped in that way.
Using the responses to the demand for admissions the defendant then demands production of documents based on the responses. The plaintiff cannot very well admit that he has full and completed documentation of the amounts demanded and then refuse to produce it upon demand. If he denies that he has documentation then how does he have a case against the defendant?
If he denies that he does not have a competent fact witness who can testify at trial then how does he refuse to produce a synopsis of the expected testimony before trial or refuse or fail to produce that witness at trial?
And how can he goof up his admissions, demand for production of documents and interrogatories yet prevail at trial? He certainly can unless the defendant knows how to prepare and use motions to compel, Duces Tecum supoenas, demurrers, motions to deem admitted, motions for sanctions, motions in limine, motions to dismiss or whatever else might be needed.
I was on a conference call last night in which a defendant called in and told the story of his day in court. He responded to the complaint and sent a good set of demands for admissions and motioned for an extension of time to complete discovery. The plaintiff's attorney jumped up and told the court that an extension of time would not be necessary because his client wanted to dismiss the case with prejudice!!! The caller said that just about floored him because he certainly didn't expect that to happen. He said he supposed that the plaintiff simply could not answer the demands for admissions without losing the case anyway so better to dismiss.
But even more important is where are you going to find the proper letters or forms to file in federal court after you lose in local court? You won't find them anywhere on the net that I know of and that is the way you have an outstanding chance to win even if you lose in local court.
There is NO court appearance date on this summons...just that I need to respond in writing...still confused...dont have the money to pay it all at once or I would have already done it! Would someone just offer some down to earth advice...plz....
I would love to do that but I can't. Not here at least. I can walk you through it step by step and teach you more than most debt collection lawyers will ever know and I'm not an attorney. And that is just one of the reasons why I can't give you any help here. Even if I were a lawyer I still could not give you that level of help here or on any other message board. There is at least one lawyer that posts here in this forum and I know for a matter of fact that he is a very competent lawyer and has seen this thread. He can't give you the level of help you need either. He can't do that and probably wouldn't even if he could because he can't make any money putting all of his knowledge and expertise on this or any other message board for free. Even if that were not an issue he still can't do it because he would soon lose his bar license.
I can't do it because I'd soon be thrown in jail for unauthorized practice of law. On top of that, if this board allowed that to happen they would soon get shut down as well. What you are asking for is impossible for us to give you. For those reasons I couldn't or wouldn't do it even if I had my own message board. I used to have one a couple of years back but I had to shut it down because I couldn't control all the porn getting posted on it. This board can control posting of porn and all other forms of advertising. They can do that because the software they have allows them to ban posters much more effectively than the software I used to have. They have the ability to ban anybody posting from any country such as Russia or China or wherever they want to. They are very strict when it comes to any kind of advertising and I don't blame them at all. So there is no way we could give you the level of help you need here or anywhere else on the internet. The only way I could possibly help you is to try to help you find competent legal counsel which I can do because I know how to find good consumer advocacy people almost anywhere you might live but they aren't going to do it for free. I'd say that the very cheapest you could hope to get help would end up costing you somewhere around $1,000 Maybe a little more and maybe a little less. You might even find somebody who would be willing to take payments so long as you could come up around half of whatever they want.
If you can afford that then I can try to see if I can find someone capable of helping you. I can usually find competent help in only a few minutes if you live in or near a major city. All I have to do is look in a big directory and give you a few choices and leave it up to you from there.
If you can't afford to spend a few hundred or won't spend it then there is nothing I can do for you. That's just the way it is. So if you are willing to pay for competent assistance then just tell me what city you live in or near and I will go over on craigslist and see who might be posting there. You can do that too but I can tell you which posters you can trust and which ones are scammers. I can check them out in just a few minutes and you don't have the resources to do that. From there it is up to you. That's the best I can do. Allexperts.com is another good place to look for competent help but they don't have nearly the number of experts craigslist does.
Sorry I can't give you more help but that's just the way it is.
The only "down to earth advice" possible is that you have three choices:
1) Learn enough about the law in NC to handle this yourself and file a response before the deadline. That's a major undertaking, and no one here is likely to have the resources to be much help. Debtorboards (google it) is more geared to pro-se lawsuits, but even there the emphasis is on being the plaintiff against people who have violated the law. Being a defendant is no fun and not likely to be profitable.
2) Hire an attorney. Many will do a free consultation. If you are in the Raleigh area John Orcutt specializes in bankruptcy but has people in his office who are familiar with consumer law and could handle a case like this one. But as Cap1 said, if you are being sued by the original creditor, for an account you actually used and signed for, and it's within the SOL, there's not much available in the way of defense.
3) Call the attorney who filed the suit and try to negotiate an out-of-court settlement. If you hire an attorney, I'd bet dollars to donuts that this is what he would recommend. Decide what terms you can pay. Tell the attorney it's either that or bankruptcy. Then either come to an agreement or go to court. Or file the bankruptcy.
Negotiating a settlement or filing bankruptcy are really your only options here, unless the company that owns the debt has violated the FDCPA so badly that you can countersue them for more than you owe.
Debtor boards is totally useless for anything but an occasional tip and lots of idle chatter. I follow every post on there through my RSS feeds and I've been doing that for years now. The poster could follow debtorboards or post over there to his hearts content and will never learn nearly as much as he can right here.
Hiring the right attorney can be a good thing to do but you should do your own research before agreeing to hire one. The first thing you should do is contact your local court clerk to see if they put their cases on their web site. If they do then do a search of all court files using that attorney's name. See what kind of cases the attorney has handled and what the win record is. If your court don't have that info on line then ask the attorney a few questions about how s/he will proceed. Will s/he send demand for admissions, discovery and interrogatories in that order or will s/he just send them all at one time? What demands and questions will be answered. What will s/he do if the plaintiff's attorney fails to answer or responds with nonsensical answers. Ask what experience s/he has in dealing with FDCPA or FCRA cases and how many federal cases has s/he filed or defended in federal court. If you can't come up with reasonable answers to those questions then get your hat and take a hike. If s/he talks about a possible settlement then you should also probably take a hike. If s/he talks about settlement rather than defending ask how much its going to cost then forget about taking a hike and run instead.
True, but the best defense is always a very strong offense. The plaintiff's lawyer is a 3rd party debt collector and you can count on the fact that s/he is going to make mistakes. Your goal should be to spot them and exploit them to the fullest. That is the only way you are going to win. If the attorney you contemplate hiring doesn't understand that and talk like s/he thoroughly understands that then you certainly don't want to hire them because you can go to court and lose without having to hire somebody to do it for you.
I'd be willing to bet on that too.
The plaintiff's attorney can be counted on to want more than you can pay. You can count on the fact that if you figure out what 25 percent of your pay would amount to that is what the attorney is going to want and that is what he is going to get unless you are on a pension. So something close to that is about the minimum they will probably accept. Then they will want you to sign a stipulated agreement to pay whatever you agree on and will immediately file that with the court as a stipulated judgment. If you fail to meet any payment they will move to garnishment almost immediately.
Countersuts almost never work. Judges routinely dismiss them and proceed to nail the defendant without further ado. If you think you have a countersuit then file it in federal court where you can get a fair hearing on the issues.
Thanks for talking in my language. This helps alot. I am calling the attorney this afternoon. It isnt the original creditor...and I know they bought my acct prob. at a discount so I am gonna try to negotiate a payment within my means. Again, thanks for talking in ways I can understand!
Lots of luck. Let us know how your talk with the attorney worked out.
I have to disagree. Following new posts there may not be very useful, but their archives are great. I recently made a rather large deposit in my bank account thanks to the information I found there.
For general credit repair, this site is much better. But for anyone contemplating filing a lawsuit pro-se, I recommend debtorboards.
The Hispanics have a saying for that. "Everyone has his own little ranch." (LOL)