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Author Topic: Received Summons  (Read 35538 times)
Karin
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« on: September 03, 2006, 08:19:36 PM »

I've been served a summons to appear in court for a pretrial hearing regarding a credit card debt that I have disputed (for over three years) and asked for debt validation. To date, all I have received is a copy of a statement that validates existence of an account and a copy of the existence of an application from a law firm, not the original creditor. They have yet to prove that I charged or that they lent or the original signed contract which I asked for. I know the law demands they validate the debt and feel that under FDCPA protection they have violated my rights. Also, I've been told I do not have to file an ANSWER, just show up. I'd like to be prepared. The law firm states the account has been turned over to them, which I find hard to believe. How can I find out if they bought the account and if the documents they sent actually came from the OC.
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Dragon
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« Reply #1 on: September 03, 2006, 09:49:22 PM »

File an answer within 20 days or they will get a default! No excuses. Just do it. Keep it simple and deny everything and demand strict proof. Don't screw up like I did on the response. Keep it short & simple.
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Karin
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« Reply #2 on: September 04, 2006, 05:11:18 AM »

I was told by an attorney I did not have to file an answer, just show up, but to be on the safe side, can you give me an example of a short, simple answer?
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Karin
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« Reply #3 on: September 04, 2006, 06:13:00 AM »

Would this be enough for an ANSWER?

Defendant

Defendant, appearing pro se, for its reply to the Complaint of Bank of America states as follows: All Answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein.

ANSWERS

1. In response to paragraph #1, the Defendant disputes the alleged debt, as solicited in paragraph #1 of the complaint.

2. In response to paragraph #2, the Complaint states legal conclusions to which no response is necessary. However, to the extent that the Court may deem a response to be necessary, defendant denies the allegation and demands strict proof thereof.

3. In response to paragraph #3, the Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.
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Florida Debtor
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« Reply #4 on: September 04, 2006, 06:56:41 AM »

You will probably want to do  defenses and possibly counter claims. You normally cant use defenses you did nor bring up in your answer. Here is a boilerplate list.

1. Plaintiff failed to state a claim upon which relief can be granted, Plaintiff's Complaint, and each cause of action therein; fails to state facts sufficient to constitute a cause of action against Defendant for which relief can be granted.

2. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint was not in writing and signed by Defendant or by some other person authorized by Defendant and who was to answer for the debt, default, or miscarriage of another person.

3. Defendant invokes the Doctrines of Scienti et volenti non fit injuria ; Defendant invokes the Doctrine of Damnum absque injuria.

4. Defendant claims a Failure of consideration as there has never been any exchange of any money or item of value between Plaintiff and Defendant.

5. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.

6. Plaintiff's complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

7. Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide; Plaintiff's complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

8. The Plaintiff is not an Assignee for the purported agreement and no evidence appears on the record to support any related assumptions.

9. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the purported debt, or a portion of the purported debt, or that the original creditor received other compensation in the form of monies or credits.

10. Defendant invokes the Doctrine of Unclean Hands as Defendant alleges that Plaintiff or the person or entity that assigned the claim to Plaintiff acted in a dishonest or fraudulent manner with respect to the dispute at issue in this case.

11. Defendant alleges that Plaintiff is precluded from bringing this action under the Doctrine of Unclean Hands, whereas Plaintiff has violated statutes of the Fair Debt
Collections Act.

12. Defendant alleges that Plaintiff’s actions are precluded, whereas Plaintiff's demands for interest are usurious and violate state and federal laws.

13. Defendant alleges an Improper Notice of Breach in that Plaintiff or the person or entity that assigned the claim to Plaintiff failed to give proper notice to this
Defendant of the claimed breach of the alleged debt prior to filing this lawsuit. Notice was required, and failure to give notice deprived this Defendant of the opportunity to timely correct the breach.

14. Defendant alleges that the Complaint includes references to alleged agreements made outside the alleged written contract, violating the Parole Evidence Rule.

15. Defendant alleges that Plaintiff or the person or entity that assigned the claim to Plaintiff is not entitled to reimbursement of attorneys’ fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them.

16. Defendant alleges that Plaintiff or the person or entity that assigned the claim to Plaintiff waited too long to file this lawsuit, making it difficult or impossible for Defendant to find witnesses or evidence or that evidence necessary to provide for Defendant's defense been lost or destroyed.

17. Plaintiff has failed to name all necessary parties.


18. Plaintiff’s damages are the result of acts or omissions committed by non-parties to this action over whom Defendant has no responsibility or control.

19. Plaintiff’s damages are the result of acts or omissions committed by Plaintiff.

20. Defendant alleges that the granting of Plaintiff’s demand in the Complaint would result in Unjust Enrichment as the Plaintiff would receive more money than Plaintiff is
entitled to receive.

21. Plaintiff's damages are limited to real or actual damages only.

22. Plaintiff's actions are precluded by the Statute of Limitations, including but not limited to the following.

   
23. The Plaintiff, with malice, has identified and named the wrong party as defendant to this action.

24. The Plaintiff, by gross negligence and/or acts of omission has identified and named the wrong party as defendant to this action.

26. Defendant reserves the right to plead additional affirmative defenses that may become available to her later.
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rubyruby27
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« Reply #5 on: September 04, 2006, 07:19:47 AM »

Don't forget to claim if alleged debt is yours it is outside the statute of limitations.  If you don't assert it now you lose that forever.  If you have been fighting for validation for 3 years I would bet it is outside the statute of limitation.

Also, file your counterclaim for violations of the FDCPA and State Laws.

Read the RCP's (rules for civil procedure), if this is small claims then you should file  written answer 5 days before the pre trial date.

You don't have to file written answers but it will help you if you do.  I just showed up and claimed everything. My case has been a nightmare.
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Dragon
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« Reply #6 on: September 04, 2006, 09:41:06 AM »

Quote
Defendant invokes the Doctrines of Scienti et volenti non fit injuria ; Defendant invokes the Doctrine of Damnum absque injuria.


Explain please?
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Dragon
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« Reply #7 on: September 04, 2006, 09:45:24 AM »

Never mind...I found it:

Can any one willingly suffer wrong?

"Scienti et volenti non fit injuria." A man properly and per se does that which he willingly does; and he properly suffers that which he suffers contrary to his will because so far as he is willing, he is rather active than passive. No one, then, can, properly speaking, do a wrong unless he wills it, nor suffer a wrong unless he be unwilling. But, per accidens, and according to the "material" part of the action, one can unwillingly do that which is per se unjust, as when he acts against his intention; or he can willingly suffer an injustice, as when he of his own will gives to another more than is due.

(1) You may say that one can "rob himself," so violate equality, and suffer injustice. But when any one of his own free will gives another that which is not due, there is neither injustice nor inequality. For a man has property through his own will, and so there is no "injury" when anything is subtracted from it according to his own will, either by himself or by another.

(2) But you may say that civil law punishes nothing which is not unjust; and yet it deprives suicides of honorable interment. So one can willingly do injustice to himself. But I reply that man has a two-fold position in this world; and one of these positions concerns himself alone; and so, if he does any harm to himself, it may be some other sin, as intemperance or imprudence, but it is not injustice.

But also man may be considered as a part of society, or as the creature and image of God. And so he who kills himself does an injury to the state and to God. Therefore both Divine and human laws inflict a penalty.

(3) Another objection. No one does an unjust thing unless there be some one who suffers that injustice. (The two are correlative.) But he may do an unjust thing to one who wills it, as when he sells a thing for more than it is worth. So it seems that one can willingly suffer injustice. But I reply that in the doing and the suffering an unjust thing, we may look at the "material" part, the outward action considered in itself. In this respect, the doing and the suffering are always concomitant. But again we may look at the will and intention, the "formal" part of the action. In this regard one may do an unjust thing intending to do such a thing, and yet the other may not suffer injustice because he willingly allows the action. (Thus, in a case of fraud in a bargain, one may pay the excessive price, intending to make a donation of the excess to the cheat.) And, conversely, one may unjustly suffer, because he unwillingly suffers that which is unjust; and yet he who does the action will not be acting unjustly, because he is ignorant of the nature of what he does.

http://www2.nd.edu/Departments//Maritain/etext/emt13.htm


DAMNUM ABSQUE INJURIA - A loss or damage without injury.

There are cases when the act of one man may cause a damage or loss to another, but for which the latter has no remedy. He is then said to have received damnum absque injuria. For example, if a man should set up a school in the neighborhood of another school, and by that means, deprive the former of its patronage; or if a man should build a mill along side of another, and consequently reduce its business.

Another instance may be given of the case where a man excavating for a foundation with proper care and diligence, injures the adjoining house due to the unsuitable materials used in such house; here the injury is damnum absque injuria.

When a man slanders another by publishing the truth, the person slandered is said to have sustained loss without injury.
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Karin
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« Reply #8 on: September 04, 2006, 10:36:22 AM »

I thought the statute of limitations in Florida was four years.

This is a credit card dispute that I have asked for validation for. I received nothing until I was sued, then they attached four computer generated copies of statements that date back to 2003 and a copy of a balance transfer form. It's a law firm in Tampa that claims the account has been turned over to them. How do I know if the account was actually assigned to them?

I also have questions regarding defenses and counterclaims. I'd like to add all that apply, but the legalese does me in. Could you explain to me what #'s 1,3,4,5,9,10,12,13,14,18,19,21 & 20 actually say? I'd like to add them, but need to understand clearly what I am claiming. Also, do I send the defenses & counterclaims along with the answer?
Thank you!
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Karin
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« Reply #9 on: September 04, 2006, 10:54:25 AM »

I answered my own question regarding answer, defenses & counterclaim. Sorry, this is all new to me.
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Florida Debtor
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« Reply #10 on: September 04, 2006, 11:37:51 AM »

Quote from: "Karin"
I thought the statute of limitations in Florida was four years.

This is a credit card dispute that I have asked for validation for. I received nothing until I was sued, then they attached four computer generated copies of statements that date back to 2003 and a copy of a balance transfer form. It's a law firm in Tampa that claims the account has been turned over to them. How do I know if the account was actually assigned to them?

I also have questions regarding defenses and counterclaims. I'd like to add all that apply, but the legalese does me in. Could you explain to me what #'s 1,3,4,5,9,10,12,13,14,18,19,21 & 20 actually say? I'd like to add them, but need to understand clearly what I am claiming. Also, do I send the defenses & counterclaims along with the answer?
Thank you!



The Sol starts at the time of breach. Are the the 2003 statments from the OC or a CA?

dixiedrifter did a great job of explaining defenses here. I think you will find this a useful read:

http://creditboards.com/forums/index.php?showtopic=132612
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I am not a lawyer. It would not be wise to use anything I say as legal advise. Check for yourself.
Karin
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« Reply #11 on: September 04, 2006, 12:57:26 PM »

The 2003 statements were attached to the summons. The firm claims the account has been turned over to them. They are copies. One of which I have no idea what it is, so I am assuming these came from the CA. I doubt BOA would have sent it. As for the link, I clicked on it and it takes me to another forum. Where would I go to find what you mentioned?
I appreciate all your help.
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Florida Debtor
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« Reply #12 on: September 04, 2006, 01:41:07 PM »

Quote from: "Karin"
The 2003 statements were attached to the summons. The firm claims the account has been turned over to them. They are copies. One of which I have no idea what it is, so I am assuming these came from the CA. I doubt BOA would have sent it. As for the link, I clicked on it and it takes me to another forum. Where would I go to find what you mentioned?
I appreciate all your help.


Unless those statments show you making payments you can figure the date of breach must be before then.

You may ned to be logged in to view the forum link I sent you. you will need to create an account. You will find the info worth it.
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Karin
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« Reply #13 on: September 04, 2006, 01:55:24 PM »

Doesn't a credit report show the date of last payment received?
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Karin
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« Reply #14 on: September 04, 2006, 02:30:30 PM »

I was wondering when would be a good time to send this and if it has to be answered or can they ignore it like they ingore everything else?

DEBT COLLECTOR DISCLOSURE STATEMENT
This statement and the answers contained herein may be used by Respondent, if necessary, in any court of competent jurisdiction.
Notice: This Debt Collector Disclosure Statement is not a substitute for, nor the equivalent of, the hereinabove-requested verification of the record, i.e. “Confirmation of correctness, truth, or authenticity, by affidavit, oath, or deposition” (Black’s Law Dictionary, Sixth Edition, 1990), re the alleged debt, and must be completed in accordance with the Fair Debt Collection Practices Act, 15 USC §1692g, applicable portions of Truth in Lending (Regulation Z), 12 CFR 226, and demands as cited above Disputed Debt. Debt Collector must make all required disclosures clearly and conspicuously in writing re the following:
1. Name of Debt Collector: ……………………………………………………………….……………………………………………...
2. Address of Debt Collector: ……………………………………………….……………………………..…………………………….
3. Name of alleged Debtor: …………………………………………………………..………………………………………………….
4. Address of alleged Debtor: ……………….……………………………………...…………………………………………………...
5. Alleged Account Number: ………..…………...……………………………………………………………………………………...
6. Alleged debt owed: $………………………………….……………………………………………………..………………………...
7. Date alleged debt became payable: ……...…………………………….………..……………..…..……………………………….
8. Re this alleged account, what is the name and address of the alleged Original Creditor, if different from Debt Collector?
……………………………………………………………………………………………………………………………………………
9. Re this alleged account, if Debt Collector is different from alleged Original Creditor, does Debt Collector have a bona fide affidavit of assignment to enter into alleged original contract between alleged Original Creditor and alleged Debtor?
YES NO
10. Did Debt Collector purchase this alleged account from the alleged Original Creditor? YES NO N/A (Not Applicable)
11. If applicable, date of purchase of this alleged account from alleged Original Creditor, and purchase amount:
Date: …………………………………………………… Amount: $……………………………………………..……………………
12. Did Debt Collector purchase this alleged account from a previous debt collector? YES NO N/A
13. If applicable, date of purchase of this alleged account from previous debt collector, and purchase amount:
Date: …………………………………………………… Amount: $……………………………………………..……………………
14. Regarding this alleged account, Debt Collector is currently the:
Owner; (b) Assignee; (c) Other – explain: …………………………………………………….… .
……………………………………………………………………………………………………………………………………………
15. What are the terms of the transfer of rights re this alleged account? ……….………….……….……………………………….

16. If applicable, transfer of rights re this alleged account was executed by the following method:
(a) Assignment; (b) Negotiation; (c) Novation; (d) Other – explain:…………………….…………………...……………
............………………………………………………………………………………………...………………………………………
17. If the transfer of rights re this alleged account was by assignment, was there consideration? YES NO N/A
18. What is the nature and cause of the consideration cited in # 17 above? ………………………….……….………..…………
………………………………………………………………………………………...…………………………………………………………………………………………………………………………………………...…………………………………………………
19. If the transfer of rights re this alleged account was by negotiation, was the alleged account taken for value?
YES NO N/A
20. What is the nature and cause of any value cited in #19 above? ……………………….………………………………………...
……………………………………………………………………………………………………………………………………………
21. If the transfer of rights re this alleged account was by novation, was consent given by alleged Debtor? YES NO N/A
22. What is the nature and cause of any consent cited in #21 above? ………………………………………………………………
……………………………………………………………………………………………………………………………………………
23. Has Debt Collector provided alleged Debtor with the requisite verification of the alleged debt as required by the Fair Debt Collection Practices Act? YES NO
24. Date said verification cited above in # 23 was provided alleged Debtor: …………………………….………………………....
25. Was said verification cited above in # 23 in the form of a sworn or affirmed oath, affidavit, or deposition? YES NO
26. Verification cited above in # 23 was provided alleged Debtor in the form of: OATH AFFIDAVIT DEPOSTION
27. Does Debt Collector have knowledge of any claim(s)/defense(s) re this alleged account? YES NO
28. What is the nature and cause of any claim(s)/defense(s) re this alleged account? ……...…………………………………….
……………………………………………………………………………………………………………………………………………
29. Was alleged Debtor sold any products/services by Debt Collector? YES NO
30. What is the nature and cause of any products/services cited above in # 29? …….……………………………………………
…………………………………………………………………………………...……………………………...………………………
31. Does there exist a verifiable, bona fide, original commercial instrument between Debt Collector and alleged Debtor containing alleged Debtor’s bona fide signature? YES NO
32. What is the nature and cause of any verifiable commercial instrument cited above in # 31? .……………………………….
…………………………………………………………………………………...……………………………...………………………
33. Does there exist verifiable evidence of an exchange of a benefit or detriment between Debt Collector and alleged Debtor? YES NO
34. What is the nature and cause of this evidence of an exchange of a benefit or detriment as cited above in # 33? …………………………………………………………………………………...……………………………...……………………
35. Does any evidence exist of verifiable external act(s) giving the objective semblance of agreement between Debt Collector and alleged Debtor? YES NO
36. What is the nature and cause of any external act(s) giving the objective semblance of agreement from #35 above? …………………………………………………………………………………………………………………………………………
37. Have any charge-offs been made by any creditor or debt collector regarding this alleged account? YES NO
38. Have any insurance claims been made by any creditor or debt collector regarding this alleged account? YES NO
39. Have any tax write-offs been made by any creditor or debt collector regarding this alleged account? YES NO
40. Have any tax deductions been made by any creditor or debt collector regarding this alleged account? YES NO
41. Have any judgments been obtained by any creditor or debt collector regarding this alleged account? YES NO
42. At the time the alleged original contract was executed, were all parties apprised of the meaning of the terms and conditions of said alleged original contract? YES NO
43. At the time the alleged original contract was executed, were all parties advised of the importance of consulting a licensed legal professional before executing the alleged contract? YES NO
44. At the time the alleged original contract was executed, were all parties apprised that said alleged contract was a private credit instrument? YES NO

Debt Collector’s failure, both intentional and otherwise, to complete/answer points “1” through “44” above and return this Debt Collector Disclosure Statement, as well as provide Respondent with the requisite verification validating the hereinabove - referenced alleged debt, constitutes Debt Collector’s tacit agreement that Debt Collector has no verifiable, lawful, bona fide claim re the hereinabove-referenced alleged account, and that Debt Collector tacitly agrees that Debt Collector waives all claims against Respondent and indemnifies and holds Respondent harmless against any and all costs and fees heretofore and hereafter incurred and related re any and all collection attempts involving the hereinabove-referenced alleged account.
Declaration: The Undersigned hereby declares under penalty of perjury of the laws of this State that the statements made in this Debt Collector Disclosure Statement are true and correct in accordance with the Undersigned’s best firsthand knowledge and belief.

____________________________________ ____________________________________
Date Printed name of Signatory

____________________________________ ____________________________________
Official Title of Signatory Authorized Signature for Debt Collector

Debt Collector must timely complete and return this Debt Collector Disclosure Statement, along with all required documents referenced in said Debt Collector Disclosure Statement. Debt Collector’s claim will not be considered if any portion of this Debt Collector Disclosure Statement is not completed and timely returned with all required documents, which specifically includes the requisite verification, made in accordance with law and codified in the Fair Debt Collection Practices Act at 15 USC §1692 et seq., and which states in relevant part: “A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt,” which includes “the false representation of the character, or legal status of any debt,” and “the threat to take any action that cannot legally be taken,” all of which are violations of law. If Debt Collector does not respond as required by law, Debt Collector’s claim will not be considered and Debt Collector may be liable for damages for any continued collection efforts, as well as any other injury sustained by Respondent. Please allow thirty (30) days for processing after Respondent’s receipt of Debt Collector’s response.




Recording Requested by, and
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