Help with Summons

Discussion in 'Credit Talk' started by DivaDiane, Mar 18, 2010.

  1. DivaDiane

    DivaDiane New Member

    Long time lurker, first time poster here :) You guys have some great advice and I've enjoyed reading the last year or so.
    Past year and a half I've been with CCCS trying to get a large amount of debt paid off ($26,000 counting this debt). Several small accounts and a couple of larger ones this one being the largest. November 2008 I started the program and during the holidays had trouble make the full payment. Two months in a row I was unable to cover the portion of the payment going to Chase. It was $200 by itself. I paid the others and tried to start back with Chase in Jan. 2009 and they notified I was off of the CCCS program. Doing great on program, all rates were lowered etc. Fast forward to current. Chase has gone to 3 CA's and had lots of violations etc. but only tried to validate with one and as soon as I did they passed it to another. Just wanting to pay something to settle this and move on! Found out I would be getting some $ I could use to settle in April this year so I've tried to ride it out. Haven't been getting calls or anything but one letter from current CA. It is a bunch of attorneys (?) operating under name of Ozark Capital Corp. I'm in AR and they have an office in Little Rock, about 140 miles from my residence.
    Summons and Complaint dropped at my house to my 19 y/o son yesterday. I have 20 days to answer. I know (I think) the basic format of preparing an answer as I have to answer garnishments on behalf of my employer. Send extra copy to clerk etc. have them send back a "filed marked" copy etc. Not sure if there's a fee to answer. There is not when I answer from work as the "Garnishee".

    Here's my goal - is it feasible and need advice through the process. I know I have to answer the summons in writing. Want to buy a few weeks throughout the pocess until it gets closer to the time I will have $ to negotiate a settlement (end of April).

    If I just admit to all of it, can they just get a Summary Judgment without me ever appearing, etc? Don't want that to happen. How do I avoid this and proceed trying to get them to settle? I know I want things in writing with them. Should I call first, negotiate and try to get them to send details of settlement in writing or should I send them a proposed settlement in writing. I'd like to start at about 40%. Can go up a little from that and pay in lump sum but more than that will have to make payments. They are suing for about $9700. I could say yes I owe it but I also agree there's lots of fees etc. added in that were not part of the original balance. Anyway - need help wording the answer - and should I ask for discovery to slow things down (is that filed on the same page as the Answer). The only thing attached to the Complaint is a page that says "Affadavit of Account" giving some chick's name as "the person in charge of business records for Ozark Capital" and the second statement on it states that "after all allowance of credits and offsets, _________ owes the following: $9572.02 plus int. accr _ attorney fees blah blah". I don't want to be too quick on the answer because as I said, I need time to work something else out. Is it all a waste of time or can I do this, LOL???? Thanks in advance!!
  2. billbauer

    billbauer Well-Known Member

    You say you have been following the postings on this forum for at least a year now but with that much lurking background it seems to me that you would know the answers to your questions as I have covered them a few times already in the last couple of months or so.

    Here are the steps again.
    (1.) Prepare your response whatever that might be. There are multiple possible responses. For example,
    (a)Respond to the complaint point by point, admitting or denying each of the plaintiff's allegations.
    (b)Respond with a general denial of all allegations
    (c)Respond with a motion to dismiss for whatever reason.
    (d)Respond with any of above and counterclaim
    (e) Respond with a cross claim
    (f) Motion to dismiss for lack of geographical jurisdiction
    (g)Statute of limitations response
    (h)Laches defense
    (i)And last but certainly not least because it is the most common response of all, Don't even go there and get a default judgment
    There are probably more possible responses that I haven't thought of yet but that will do for starters.

    Once your response is prepared you will need to actually go to the clerk of the court and file your response. Once you have filed your response you need to prepare a certificate of mailing and send it along with your response to the plaintiff's attorney. You might also want to send a debt validation letter as well as a good list of demands for admissions that you want the plaintiff to admit to. Of course, you will want to first ascertain whether or not your specific court allows for discovery. You can make discovery demands even though the court does not allow them by going at it a different way. If the court does not allow discovery a different mechanism exists by which you can get the same thing done without actually calling them admissions, interrogatories or demand for production of documents. For instance, you might be able to demand production of documents through Subpoena Duces Tecum even though you cannot use demand for production of documents in the more normal way.
    You ask whether or not you should file your discovery demands along with your response. The answer is that most courts will not allow filing of discovery demands but I have seen attorneys include them as a part of the complaint and try to get them in under the radar that way.

    You ask if you can try for a settlement of maybe 40%. You can try but I wouldn't expect to get it below 70% or so. Why should they take much less when they can get it all and more by refusing to settle?

    If you want to get out for less you need to learn some tricks. For instance, you talk about an affidavit that has some chick's name on it. You seem to pass over that lightly as though it is either of little consequence or that there is nothing you can do about it. Affidavits are almost always full of false and misleading information and often downright fraudulent. For instance, last Friday night on my conference call a lady mentioned that there was an affidavit included with her summons and complaint. Turns out that the Notary public was in Michigan and the person making the statement was in Florida while the bank was in an entirely different state.
    When a notary notarizes a statement the affiant must be standing in front of the notary and the notary must see two forms of I.D. and one of those must be a document such as a DL showing a photo of the person making the statement. That could not possibly have happened in her case so that notary committed an unlawful act and the defendant could go after both the notary bond and the notary's O and E insurance if any existed. My war department (LOL) is a notary. Since she notarizes lots of documents for my local students I pay for her notary commission, stamp, bond, insurance, log book (which she must keep by law) and all her notarial expenses. She also does titles and other documents and gets $5 for each notarial act she performs. I just let her keep all that to spend as she pleases. As a result I know all about notaries, what they can and cannot do so I know that an affiant must be standing in front of the notary at the time the document is notarized. So you need to look at that document and see what is false and misleading information or what is not false and misleading. If there is any false and misleading information then you could easily file a federal case against the plaintiff's attorney and maybe the plaintiff as well.

    Maybe you shouldn't give up so easily. A good federal case can get you off the hook completely. Federal filings against debt collectors and attorneys has increased about 95% this year over the same period of any other previous year. I call that informal bankruptcy because it gets rid of the debts and often gets the credit repaired as well. I think that's far better than worrying about gaining a little time to pay them off.

    I'm sure that if you have been lurking on the board for a year or so you have kept up with all the stuff I put on my google docs pages and my google sites pages haven't you? If not you might want to start doing so because there is lots and lots of information there that will also help you learn how to do what you need to do.
  3. DivaDiane

    DivaDiane New Member

    Bill, Thanks for the prompt and informative reply. I should state that most of my time lurking has been spent repairing my credit, reading up on getting interest rates lowered and such. I had not spent much time reading up on court procedures and law suits. Of course I did read all I could in a day before I posted my question, I simply posted in haste as I had just received the summons and was a bit shaken by it.

    I hear what you're saying about a case in federal court etc. I also realize I could be giving up to fast and could have a case. I'm not denying I owe the debt, most of it anyway. I realize there are always a bunch of extras tagged onto that amount. I'm in the middle of some personal things that don't afford me a lot of time and energy to put into this right now (family member with cancer, raising teenagers and working full time). You know, life in general. Maybe it's a cop out on my part but I've pretty much decided I don't want to be in court on this period. That being said, I also don't want to do anything stupid to put me in court but don't want to spend any more than I absolutely have to! Yes, like most folks I want it all.

    I will have a max of $4600 cash at the end of April to throw at this. I can make payment of up to $200 max per month for as long as it takes but I'd like to do it no longer than the rest of this calendar year. If that was to start in May that only puts me at total of $6200 on a $10,000 debt. Not sure that will fly based on your 70% estimation. I also know they could get the full thing by going to court but they might not be as likely to get the $4600 up front doing that if I'm forced to get an attorney, etc.???

    The notary is in the same state, different county. The CA (based on what I could find researching it) does have a couple of "real" attorneys there so I'm guessing they have a notary or two on staff as well.

    My thinking on the answer (since I'm willing to pay something on this) is to make it "good enough" to hope they won't want to continue and will be more willing to settle. I will have to find out if my court allows for discovery or not. If not, I'm certainly going to pursue that directly with the CA. As I said this is the 3rd CA and I figured as soon as I got to validating with them they'd just sell it off to someone else. Boy, I called that one wrong. So with this one I have not even had any contact with them. Guess it's time to start :)

    I've hear so many horror stories about going to court (for anything), and this is just enough of a city with "small town" thinking and politics I'd rather not deal with the courts here. I guess there's always a chance of it coming to that but I'd just as soon not, even though I "might" be able to save some money by doing so.

    I will read up more this weekend on topics that pertain to my situation. I have a few days since I got the summons on Wednesday but I don't want to wait too long to answer. I also don't want to start trying to settle too quickly as I won't have any lump sum payment to offer until the last part of April.

    Thanks again Bill, you offer lots of great info and I know you've been able to help a lot of posters.

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