How to answer a summons

[otis629]

What is the name of your state (only U.S. law)? Ohio

I received a summons and now I seek advice on how to proceed with my answer to this summons. Paragraph x of the summons says that prior to xxxx xx, 1995, I entered into a written contract with assignor, a copy of which was attached as exhibit A. No signature from me anywhere on the agreement nor any proof of this debt being mine. I believe (but am not 100% sure) that the SOL for credit card debt in Ohio is 6 years (open account?).

I assume a graduated denial from me is in order as well as my request for some sort of verification of this debt. Any pointers on how to properly write and file these papers is much appreciateed. Also, if the SOL is indeed 6 years, then how should I proceed?

TIAWhat is the name of your state (only U.S. law)?

 

[debtor2008]

if u dispute the complaint, then u just say in your answer that you dispiute any and all statements in that particular complaint. afterwards, you will be mailed a court date. show up and then you can ask for any and all verification of the debt and validation that you owe payment to the company sueing you.


MAKE 100% sure that you file and answer on or before the due date.
IF YOU DO NOT, then the PLAINTIFF WILL automatically WIN and recieve an automatic judgement against you w/o going to court.

 

[otis629]

Thank you for your reply debtor2008.

I'm still trying to figure out the SOL here in Ohio. I guess I'll take a trip to the law library and see what I can find there.

 

[TigerD]

The SOL for Ohio is 15 years.

It is the most forward thinking and upright state in the country, IMHO.

DC

 

[Credithis]

Always use the word alledged when refering to this in court.

Now, this is so old as to be quite a problem for the debt collector.
First: Demand in discovery an unbroken chain of assignment from the alledged original creditor to the present day holder of the debt.

second: Povide proof that they are the owner and all documents in their possession proving it.

Third: Provide a complete account of the alledged debt from a beginning zero balance to present. List all charges, interest rates, how charges were accrued, etc. See this:

http://bulk.resource.org/courts.gov/states/Ohio.Ct.App.04/2004-ohio-623.pdf

In Ohio that means they have to not only have the complete record from the OC but, a witness from the OC to testify as to its accuracy and that it is from the OC. No one is going to be still at the OC and remember this!!

 

[Bosco]

Thank you for your reply debtor2008.

I'm still trying to figure out the SOL here in Ohio. I guess I'll take a trip to the law library and see what I can find there.

Ohio is a very contested state when it comes to the SOL, but it's not hopeless either. There are people who have argued the 4 year SOL based on the UCC and won, but you'll really have to do your homework.

I have a couple resources you could use, but it shows that you don't accept PM's. Go into your user CP and open that up, then shoot me a PM and I'll give you the stuff I have.

Good luck buddy.

 

[tranquility]

In Ohio that means they have to not only have the complete record from the OC but, a witness from the OC to testify as to its accuracy and that it is from the OC. No one is going to be still at the OC and remember this!!

That is not what it means. The record will be admitted into evidence if a person from the OC says they are familiar of the business practices of the agency and this record comports with the business practices. They are not going to have to find someone knowledgeable in the specific details of the original debt.

 

[Bosco]

Always use the word alledged when refering to this in court.

Now, this is so old as to be quite a problem for the debt collector.
First: Demand in discovery an unbroken chain of assignment from the alledged original creditor to the present day holder of the debt.

second: Povide proof that they are the owner and all documents in their possession proving it.

Third: Provide a complete account of the alledged debt from a beginning zero balance to present. List all charges, interest rates, how charges were accrued, etc. See this:

http://bulk.resource.org/courts.gov/states/Ohio.Ct.App.04/2004-ohio-623.pdf

In Ohio that means they have to not only have the complete record from the OC but, a witness from the OC to testify as to its accuracy and that it is from the OC. No one is going to be still at the OC and remember this!!

Good post. Also if I recall correctly, Ohio law states that for the written contract SOL to be used, the actual written and signed contract must be provided. Fat chance of that happening after all these years.

 

[Bosco]

Otis, you said that a copy of the agreement was attached as exhibit A. You need to check that document very carefully.

If it has a copyright date later than the date they allege you defaulted, you need to file a motion to strike the agreement from evidence based on prima facie evidence that you, the defendant, could not be bound to such agreement because it was created after the account went into default.

 

[otis629]

Always use the word alledged when refering to this in court.

Will do, thanks for the tip as well as your informative reply.

...You need to check that document very carefully.

Thanks for your reply as well Bosco. I did read the agreement and this part looks interesting to me...

Applicable Law:
The terms and enforcement of this Agreement shall be governed by federal law and the law of South Dakota, where we are located.

Does this mean I need to proceed under South Dakota SOL?

Thank you all for your replies thus far.

 

[otis629]

Things of interest to me...

Allegation x states:
Prior to XXXX XX, 1995, Defendant(s) entered into a written contract with assignor, a copy of which is attached as Exhibit "A" and incorporated by reference.

Allegation x states:
The account records are not attached hereto because, upon information and belief: (a) Plaintiff is not the original creditor and does not have posession, costudy or control of said records; (b) copies were sent monthly to the Defendant(s), and are or were in Defendant(s)' posession, custody or control: and/or (c) said account records may be voluminous.

Exhibit "A", (the alleged copy of what I am said to have signed), contains a copyright © 2002 (name of bank) South Dakota, N.A.

I am positive there is NO WAY I signed anything in regards to a credit card with this bank beyond 1994, let alone in 2002. How can they use a copy of this alleged contract that wasn't even in print until 7 years AFTER I allegedly signed the agreement?

 

[Bosco]

Does this mean I need to proceed under South Dakota SOL?

No, although it would be nice if you could since SD has a 6 year SOL across the board.

Unfortunately, you'll have to go after this while dealing with the Ohio SOL issues, but that can be dealt with.

Exhibit "A", (the alleged copy of what I am said to have signed), contains a copyright © 2002 (name of bank) South Dakota, N.A.

I assume that the alleged default occurred prior to 2002? If so, you need to file a motion to strike as I said in my previous post.

Allegation x states:
The account records are not attached hereto because, upon information and belief: (a) Plaintiff is not the original creditor and does not have posession, costudy or control of said records; (b) copies were sent monthly to the Defendant(s), and are or were in Defendant(s)' posession, custody or control: and/or (c) said account records may be voluminous.

YES! I love it! They are now on record admitting they have no documentation. They've practically done your job for you.

 

[otis629]

...They've practically done your job for you.

Maybe so but YOU have done much more in my behalf.

I assume that the alleged default occurred prior to 2002?

There is no default date contianed in the summons, only the entering into a written contract prior to xxxx xx, 1995. If I did default on any credit card, to the best of my knowledge, it would have been and well before 2002, even prior to 1995.

I came across this site The Ohio Consumerist: Statute of Limitations on Credit Cards and wonder if anyone can shed any light on the possible 4 year SOL? Why is Ohio so vague on this issue? I would really like to go into court having the correct SOL in my hands.

 

[TigerD]

Why is Ohio so vague on this issue?

It isn't. As you will learn.

 

[otis629]

I called the Ohio Attorney General's office and the girl I talked to said there is no clear cut definition on the SOL for cc debt in Ohio. It depends on the language used in the cc agreement.

Having said that, how can you be so sure about the 15 years debtcollector? I don't want to start any arguments over this, but if you can point me to any references I would be very grateful.

The merit of my side of this case doesn't rely solely on SOL, I just want to be 100% factual when I file my answer.